IB 

House Calendar No. 29 

111TH CONGRESS 

1ST SESSION H. R. 1107 

[Report No. 111–42] 

To enact certain laws relating to public contracts as title 41, United States 

Code, ‘‘Public Contracts’’. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 23, 2009 

Mr. CONYERS (for himself and Mr. SMITH of Texas) introduced the following 

bill; which was referred to the Committee on the Judiciary 

MARCH 23, 2009 

Reported, referred to the House Calendar, and ordered to be printed 

A BILL 

To enact certain laws relating to public contracts as title 

41, United States Code, ‘‘Public Contracts’’. 

1 Be it enacted by the Senate and House of Representatives of the United 

2 States of America in Congress assembled, 

3 SECTION 1. TABLE OF CONTENTS. 

4 The table of contents for this Act is as follows: 

Sec. 1. Table of contents. 

Sec. 2. Purpose; conformity with original intent. 

Sec. 3. Enactment of Title 41, United States Code. 

Sec. 4. Conforming amendment. 

Sec. 5. Conforming cross-references. 

Sec. 6. Transitional and savings provisions. 

Sec. 7. Repeals. 


hsrobinson on PROD1PC76 with BILLS
2 

HR 1107 RH 

1 SEC. 2. PURPOSE; CONFORMITY WITH ORIGINAL INTENT. 

2 (a) PURPOSE.—The purpose of this Act is to enact certain laws relating 

3 to public contracts as title 41, United States Code, ‘‘Public Contracts’’. 

4 (b) CONFORMITY WITH ORIGINAL INTENT.—In the codification of laws 

5 by this Act, the intent is to conform to the understood policy, intent, and 

6 purpose of Congress in the original enactments, with such amendments and 

7 corrections as will remove ambiguities, contradictions, and other imperfec8 tions, in accordance with section 205(c)(1) of House Resolution No. 988, 

9 93d Congress, as enacted into law by Public Law 93–554 (2 U.S.C. 

10 285b(1)). 

11 SEC. 3. ENACTMENT OF TITLE 41, UNITED STATES CODE. 

12 Certain general and permanent laws of the United States, related to pub13 lic contracts, are revised, codified, and enacted as title 41, United States 

14 Code, ‘‘Public Contracts’’, as follows: 

15 TITLE 41—PUBLIC CONTRACTS 

Subtitle Sec. 

I. FEDERAL PROCUREMENT POLICY ................................................ 101 

II. OTHER ADVERTISING AND CONTRACT PROVISIONS .......... 6101 

III. CONTRACT DISPUTES .......................................................................... 7101 

IV. MISCELLANEOUS .................................................................................... 8101 

16 Subtitle I—Federal Procurement Policy 

17 DIVISION A—GENERAL

Chapter Sec. 

1. Definitions ................................................................................................... 101 

18 DIVISION B—OFFICE OF FEDERAL PROCUREMENT POLICY

11. Establishment of Office and Authority and Functions of Administrator.1101 

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 

19 DIVISION C—PROCUREMENT

31. General .......................................................................................................... 3101 

33. Planning and Solicitation ...................................................................... 3301 

35. Truthful Cost and 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 

20 DIVISION A—GENERAL

21 CHAPTER 1—DEFINITIONS 

SUBCHAPTER I—SUBTITLE DEFINITIONS 

Sec. 

101. Administrator. 

102. Commercial component. 

103. Commercial item. 


hsrobinson on PROD1PC76 with BILLS
3 

HR 1107 RH 

104. Commercially available off-the-shelf item. 

105. Component. 

106. Federal Acquisition Regulation. 

107. Full and open competition. 

108. Item and item of supply. 

109. Major system. 

110. Nondevelopmental item. 

111. Procurement. 

112. Procurement system. 

113. Responsible source. 

114. Standards. 

115. Supplies. 

116. Technical data. 

SUBCHAPTER II—DIVISION B DEFINITIONS 

131. Acquisition. 

132. Competitive procedures. 

133. Executive agency. 

134. Simplified acquisition threshold. 

SUBCHAPTER III—DIVISION C DEFINITIONS 

151. Agency head. 

152. Competitive procedures. 

153. Simplified acquisition threshold for contract in support of humanitarian or peacekeeping 

operation. 

1 SUBCHAPTER I—SUBTITLE DEFINITIONS 

2 § 101. Administrator 

3 In this subtitle, the term ‘‘Administrator’’ means the Administrator for 

4 Federal Procurement Policy appointed under section 1102 of this title. 

5 § 102. Commercial component 

6 In this subtitle, the term ‘‘commercial component’’ means a component 

7 that is a commercial item. 

8 § 103. Commercial item 

9 In this subtitle, the term ‘‘commercial item’’ means— 

10 (1) an item, other than real property, that— 

11 (A) is of a type customarily used by the general public or by 

12 nongovernmental entities for purposes other than governmental 

13 purposes; and 

14 (B) has been sold, leased, or licensed, or offered for sale, lease, 

15 or license, to the general public; 

16 (2) an item that— 

17 (A) evolved from an item described in paragraph (1) through 

18 advances in technology or performance; and 

19 (B) is not yet available in the commercial marketplace but will 

20 be available in the commercial marketplace in time to satisfy the 

21 delivery requirements under a Federal Government solicitation; 

22 (3) an item that would satisfy the criteria in paragraph (1) or (2) 

23 were it not for— 

24 (A) modifications of a type customarily available in the commer25 cial marketplace; or 


hsrobinson on PROD1PC76 with BILLS
4 

HR 1107 RH 

1 (B) minor modifications made to meet Federal Government re2 quirements; 

3 (4) any combination of items meeting the requirements of paragraph 

4 (1), (2), (3), or (5) that are of a type customarily combined and sold 

5 in combination to the general public; 

6 (5) installation services, maintenance services, repair services, train7 ing services, and other services if— 

8 (A) those services are procured for support of an item referred 

9 to in paragraph (1), (2), (3), or (4), regardless of whether the 

10 services are provided by the same source or at the same time as 

11 the item; and 

12 (B) the source of the services provides similar services contem13 poraneously to the general public under terms and conditions simi14 lar to those offered to the Federal Government; 

15 (6) services offered and sold competitively, in substantial quantities, 

16 in the commercial marketplace based on established catalog or market 

17 prices for specific tasks performed or specific outcomes to be achieved 

18 and under standard commercial terms and conditions; 

19 (7) any item, combination of items, or service referred to in para20 graphs (1) to (6) even though the item, combination of items, or service 

21 is transferred between or among separate divisions, subsidiaries, or af22 filiates of a contractor; or 

23 (8) a nondevelopmental item if the procuring agency determines, in 

24 accordance with conditions in the Federal Acquisition Regulation, that 

25 the item was developed exclusively at private expense and has been sold 

26 in substantial quantities, on a competitive basis, to multiple State and 

27 local governments. 

28 § 104. Commercially available off-the-shelf item 

29 In this subtitle, the term ‘‘commercially available off-the-shelf item’’— 

30 (1) means an item that— 

31 (A) is a commercial item (as described in section 103(1) of this 

32 title); 

33 (B) is sold in substantial quantities in the commercial market34 place; and 

35 (C) is offered to the Federal Government, without modification, 

36 in the same form in which it is sold in the commercial market37 place; but 

38 (2) does not include bulk cargo, as defined in section 40102(4) of 

39 title 46, such as agricultural products and petroleum products. 


hsrobinson on PROD1PC76 with BILLS
5 

HR 1107 RH 

1 § 105. Component 

2 In this subtitle, the term ‘‘component’’ means an item supplied to the 

3 Federal Government as part of an end item or of another component. 

4 § 106. Federal Acquisition Regulation 

5 In this subtitle, the term ‘‘Federal Acquisition Regulation’’ means the 

6 regulation issued under section 1303(a)(1) of this title. 

7 § 107. Full and open competition 

8 In this subtitle, the term ‘‘full and open competition’’, when used with 

9 respect to a procurement, means that all responsible sources are permitted 

10 to submit sealed bids or competitive proposals on the procurement. 

11 § 108. Item and item of supply 

12 In this subtitle, the terms ‘‘item’’ and ‘‘item of supply’’— 

13 (1) mean an individual part, component, subassembly, assembly, or 

14 subsystem integral to a major system, and other property which may 

15 be replaced during the service life of the system, including spare parts 

16 and replenishment spare parts; but 

17 (2) do not include packaging or labeling associated with shipment or 

18 identification of an item. 

19 § 109. Major system 

20 (a) IN GENERAL.—In this subtitle, the term ‘‘major system’’ means a 

21 combination of elements that will function together to produce the capabili22 ties required to fulfill a mission need. These elements may include hardware, 

23 equipment, software, or a combination of hardware, equipment, and soft24 ware, but do not include construction or other improvements to real prop25 erty. 

26 (b) SYSTEM DEEMED TO BE MAJOR SYSTEM.—A system is deemed to 

27 be a major system if— 

28 (1) the Department of Defense is responsible for the system and the 

29 total expenditures for research, development, testing, and evaluation for 

30 the system are estimated to exceed $75,000,000 (based on fiscal year 

31 1980 constant dollars) or the eventual total expenditure for procure32 ment exceeds $300,000,000 (based on fiscal year 1980 constant dol33 lars); 

34 (2) a civilian agency is responsible for the system and total expendi35 tures for the system are estimated to exceed the greater of $750,000 

36 (based on fiscal year 1980 constant dollars) or the dollar threshold for 

37 a major system established by the agency pursuant to Office of Man38 agement and Budget (OMB) Circular A–109, entitled ‘‘Major Systems 

39 Acquisitions’’; or 

40 (3) the head of the agency responsible for the system designates the 

41 system a major system. 


hsrobinson on PROD1PC76 with BILLS
6 

HR 1107 RH 

1 § 110. Nondevelopmental item 

2 In this subtitle, the term ‘‘nondevelopmental item’’ means— 

3 (1) a commercial item; 

4 (2) a previously developed item of supply that is in use by a depart5 ment or agency of the Federal Government, a State or local govern6 ment, or a foreign government with which the United States has a mu7 tual defense cooperation agreement; 

8 (3) an item of supply described in paragraph (1) or (2) that requires 

9 only minor modification or modification of the type customarily avail10 able in the commercial marketplace to meet the requirements of the 

11 procuring department or agency; or 

12 (4) an item of supply currently being produced that does not meet 

13 the requirements of paragraph (1), (2), or (3) solely because the item 

14 is not yet in use. 

15 § 111. Procurement 

16 In this subtitle, the term ‘‘procurement’’ includes all stages of the process 

17 of acquiring property or services, beginning with the process for determining 

18 a need for property or services and ending with contract completion and 

19 closeout. 

20 § 112. Procurement system 

21 In this subtitle, the term ‘‘procurement system’’ means the integration of 

22 the procurement process, the professional development of procurement per23 sonnel, and the management structure for carrying out the procurement 

24 function. 

25 § 113. Responsible source 

26 In this subtitle, the term ‘‘responsible source’’ means a prospective con27 tractor that— 

28 (1) has adequate financial resources to perform the contract or the 

29 ability to obtain those resources; 

30 (2) is able to comply with the required or proposed delivery or per31 formance schedule, taking into consideration all existing commercial 

32 and Government business commitments; 

33 (3) has a satisfactory performance record; 

34 (4) has a satisfactory record of integrity and business ethics; 

35 (5) has the necessary organization, experience, accounting and oper36 ational controls, and technical skills, or the ability to obtain the organi37 zation, experience, controls, and skills; 

38 (6) has the necessary production, construction, and technical equip39 ment and facilities, or the ability to obtain the equipment and facilities; 

40 and 


hsrobinson on PROD1PC76 with BILLS
7 

HR 1107 RH 

1 (7) is otherwise qualified and eligible to receive an award under ap2 plicable laws and regulations. 

3 § 114. Standards 

4 In this subtitle, the term ‘‘standards’’ means the criteria for determining 

5 the effectiveness of the procurement system by measuring the performance 

6 of the various elements of the system. 

7 § 115. Supplies 

8 In this subtitle, the term ‘‘supplies’’— 

9 (1) means an individual part, component, subassembly, assembly, or 

10 subsystem integral to a major system, and other property which may 

11 be replaced during the service life of the system, including spare parts 

12 and replenishment spare parts; but 

13 (2) does not include packaging or labeling associated with shipment 

14 or identification of an item. 

15 § 116. Technical data 

16 In this subtitle, the term ‘‘technical data’’— 

17 (1) means recorded information (regardless of the form or method 

18 of the recording) of a scientific or technical nature (including computer 

19 software documentation) relating to supplies procured by an agency; 

20 but 

21 (2) does not include computer software or financial, administrative, 

22 cost or pricing, or management data or other information incidental to 

23 contract administration. 

24 SUBCHAPTER II—DIVISION B DEFINITIONS 

25 § 131. Acquisition 

26 In division B, the term ‘‘acquisition’’— 

27 (1) means the process of acquiring, with appropriated amounts, by 

28 contract for purchase or lease, property or services (including construc29 tion) that support the missions and goals of an executive agency, from 

30 the point at which the requirements of the executive agency are estab31 lished in consultation with the chief acquisition officer of the executive 

32 agency; and 

33 (2) includes— 

34 (A) the process of acquiring property or services that are al35 ready in existence, or that must be created, developed, dem36 onstrated, and evaluated; 

37 (B) the description of requirements to satisfy agency needs; 

38 (C) solicitation and selection of sources; 

39 (D) award of contracts; 

40 (E) contract performance; 

41 (F) contract financing; 


hsrobinson on PROD1PC76 with BILLS
8 

HR 1107 RH 

1 (G) management and measurement of contract performance 

2 through final delivery and payment; and 

3 (H) technical and management functions directly related to the 

4 process of fulfilling agency requirements by contract. 

5 § 132. Competitive procedures 

6 In division B, the term ‘‘competitive procedures’’ means procedures under 

7 which an agency enters into a contract pursuant to full and open competi8 tion. 

9 § 133. Executive agency 

10 In division B, the term ‘‘executive agency’’ means— 

11 (1) an executive department specified in section 101 of title 5; 

12 (2) a military department specified in section 102 of title 5; 

13 (3) an independent establishment as defined in section 104(1) of title 

14 5; and 

15 (4) a wholly owned Government corporation fully subject to chapter 

16 91 of title 31. 

17 § 134. Simplified acquisition threshold 

18 In division B, the term ‘‘simplified acquisition threshold’’ means 

19 $100,000. 

20 SUBCHAPTER III—DIVISION C DEFINITIONS 

21 § 151. Agency head 

22 In division C, the term ‘‘agency head’’ means the head or any assistant 

23 head of an executive agency, and may at the option of the Administrator 

24 of General Services include the chief official of any principal organizational 

25 unit of the General Services Administration. 

26 § 152. Competitive procedures 

27 In division C, the term ‘‘competitive procedures’’ means procedures under 

28 which an executive agency enters into a contract pursuant to full and open 

29 competition. The term also includes— 

30 (1) procurement of architectural or engineering services conducted in 

31 accordance with chapter 11 of title 40; 

32 (2) the competitive selection of basic research proposals resulting 

33 from a general solicitation and the peer review or scientific review (as 

34 appropriate) of those proposals; 

35 (3) the procedures established by the Administrator of General Serv36 ices for the multiple awards schedule program of the General Services 

37 Administration if— 

38 (A) participation in the program has been open to all respon39 sible sources; and 


hsrobinson on PROD1PC76 with BILLS
9 

HR 1107 RH 

1 (B) orders and contracts under those procedures result in the 

2 lowest overall cost alternative to meet the needs of the Federal 

3 Government; 

4 (4) procurements conducted in furtherance of section 15 of the Small 

5 Business Act (15 U.S.C. 644) as long as all responsible business con6 cerns that are entitled to submit offers for those procurements are per7 mitted to compete; and 

8 (5) a competitive selection of research proposals resulting from a 

9 general solicitation and peer review or scientific review (as appropriate) 

10 solicited pursuant to section 9 of that Act (15 U.S.C. 638). 

11 § 153. Simplified acquisition threshold for contract in 

12 suppport of humanitarian or peacekeeping oper13 ation 

14 (1) IN GENERAL.—In division C, the term ‘‘simplified acquisition thresh15 old’’ has the meaning provided that term in section 134 of this title, except 

16 that, in the case of a contract to be awarded and performed, or purchase 

17 to be made, outside the United States in support of a humanitarian or 

18 peacekeeping operation, the term means an amount equal to two times the 

19 amount specified for that term in section 134 of this title. 

20 (2) DEFINITION.—In paragraph (1), the term ‘‘humanitarian or peace21 keeping operation’’ means a military operation in support of the provision 

22 of humanitarian or foreign disaster assistance or in support of a peace23 keeping operation under chapter VI or VII of the Charter of the United Na24 tions. The term does not include routine training, force rotation, or sta25 tioning. 

26 DIVISION B—OFFICE OF FEDERAL PROCUREMENT POLICY

27 CHAPTER 11—ESTABLISHMENT OF OFFICE AND 

28 AUTHORITY AND FUNCTIONS OF ADMINISTRATOR 

SUBCHAPTER I—GENERAL 

Sec. 

1101. Office of Federal Procurement Policy. 

1102. Administrator. 

SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR 

1121. General authority. 

1122. Functions. 

1123. Small business concerns. 

1124. Tests of innovative procurement methods and procedures. 

1125. Recipients of Federal grants or assistance. 

1126. Policy regarding consideration of contractor past performance. 

1127. Determining benchmark compensation amount. 

1128. Maintaining necessary capability with respect to acquisition of architectural and engineering services. 

1129. Center of excellence in contracting for services. 

1130. Effect of division on other law. 

1131. Annual report. 


hsrobinson on PROD1PC76 with BILLS
10 

HR 1107 RH 

1 SUBCHAPTER I—GENERAL 

2 § 1101. Office of Federal Procurement Policy 

3 (a) ORGANIZATION.—There is an Office of Federal Procurement Policy 

4 in the Office of Management and Budget. 

5 (b) PURPOSES.—The purposes of the Office of Federal Procurement Pol6 icy are to— 

7 (1) provide overall direction of Government-wide procurement poli8 cies, regulations, procedures, and forms for executive agencies; and 

9 (2) promote economy, efficiency, and effectiveness in the procure10 ment of property and services by the executive branch of the Federal 

11 Government. 

12 (c) AUTHORIZATION OF APPROPRIATIONS.—Necessary amounts may be 

13 appropriated each fiscal year for the Office of Federal Procurement Policy 

14 to carry out the responsibilities of the Office for that fiscal year. 

15 § 1102. Administrator 

16 (a) HEAD OF OFFICE.—The head of the Office of Federal Procurement 

17 Policy is the Administrator for Federal Procurement Policy. 

18 (b) APPOINTMENT.—The Administrator is appointed by the President, by 

19 and with the advice and consent of the Senate. 

20 SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE 

21 ADMINISTRATOR 

22 § 1121. General authority 

23 (a) OVERALL DIRECTION AND LEADERSHIP.—The Administrator shall 

24 provide overall direction of procurement policy and leadership in the devel25 opment of procurement systems of the executive agencies. 

26 (b) FEDERAL ACQUISITION REGULATION.—To the extent that the Ad27 ministrator considers appropriate in carrying out the policies and functions 

28 set forth in this division, and with due regard for applicable laws and the 

29 program activities of the executive agencies, the Administrator may pre30 scribe Government-wide procurement policies. The policies shall be imple31 mented in a single Government-wide procurement regulation called the Fed32 eral Acquisition Regulation. 

33 (c) POLICIES TO BE FOLLOWED BY EXECUTIVE AGENCIES.— 

34 (1) AREAS OF PROCUREMENT FOR WHICH POLICIES ARE TO BE FOL35 LOWED.—The policies implemented in the Federal Acquisition Regula36 tion shall be followed by executive agencies in the procurement of— 

37 (A) property other than real property in being; 

38 (B) services, including research and development; and 

39 (C) construction, alteration, repair, or maintenance of real prop40 erty. 


hsrobinson on PROD1PC76 with BILLS
11 

HR 1107 RH 

1 (2) PROCEDURES TO ENSURE COMPLIANCE.—The Administrator 

2 shall establish procedures to ensure compliance with the Federal Acqui3 sition Regulation by all executive agencies. 

4 (3) APPLICATION OF OTHER LAWS.—The authority of an executive 

5 agency under another law to prescribe policies, regulations, procedures, 

6 and forms for procurement is subject to the authority conferred in this 

7 section and sections 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 

8 2305 of this title. 

9 (d) WHEN CERTAIN AGENCIES ARE UNABLE TO AGREE OR FAIL TO

10 ACT.—In any instance in which the Administrator determines that the De11 partment of Defense, the National Aeronautics and Space Administration, 

12 and the General Services Administration are unable to agree on or fail to 

13 issue Government-wide regulations, procedures, and forms in a timely man14 ner, including regulations, procedures, and forms necessary to implement 

15 prescribed policy the Administrator initiates under subsection (b), the Ad16 ministrator, with due regard for applicable laws and the program activities 

17 of the executive agencies and consistent with the policies and functions set 

18 forth in this division, shall prescribe Government-wide regulations, proce19 dures, and forms which executive agencies shall follow in procuring items 

20 listed in subsection (c)(1). 

21 (e) OVERSIGHT OF PROCUREMENT REGULATIONS OF OTHER AGEN22 CIES.—The Administrator, with the concurrence of the Director of the Of23 fice of Management and Budget, and with consultation with the head of the 

24 agency concerned, may deny the promulgation of or rescind any Govern25 ment-wide regulation or final rule or regulation of any executive agency re26 lating to procurement if the Administrator determines that the rule or regu27 lation is inconsistent with any policies, regulations, or procedures issued 

28 pursuant to subsection (b). 

29 (f) LIMITATION ON AUTHORITY.—The authority of the Administrator 

30 under this division shall not be construed to— 

31 (1) impair or interfere with the determination by executive agencies 

32 of their need for, or their use of, specific property, services, or con33 struction, including particular specifications for the property, services, 

34 or construction; or 

35 (2) interfere with the determination by executive agencies of specific 

36 actions in the award or administration of procurement contracts. 

37 § 1122. Functions 

38 (a) IN GENERAL.—The functions of the Administrator include— 

39 (1) providing leadership and ensuring action by the executive agen40 cies in establishing, developing, and maintaining the single system of 

41 simplified Government-wide procurement regulations and resolving difVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
12 

HR 1107 RH 

1 ferences among the executive agencies in developing simplified Govern2 ment-wide procurement regulations, procedures, and forms; 

3 (2) coordinating the development of Government-wide procurement 

4 system standards that executive agencies shall implement in their pro5 curement systems; 

6 (3) providing leadership and coordination in formulating the execu7 tive branch position on legislation relating to procurement; 

8 (4)(A) providing for and directing the activities of the computer9 based Federal Procurement Data System (including recommending to 

10 the Administrator of General Services a sufficient budget for those ac11 tivities), which shall be located in the General Services Administration, 

12 in order to adequately collect, develop, and disseminate procurement 

13 data; and 

14 (B) ensuring executive agency compliance with the record require15 ments of section 1712 of this title; 

16 (5) providing for and directing the activities of the Federal Acquisi17 tion Institute (including recommending to the Administrator of General 

18 Services a sufficient budget for those activities), which shall be located 

19 in the General Services Administration, in order to— 

20 (A) foster and promote the development of a professional acqui21 sition workforce Government-wide; 

22 (B) promote and coordinate Government-wide research and 

23 studies to improve the procurement process and the laws, policies, 

24 methods, regulations, procedures, and forms relating to acquisition 

25 by the executive agencies; 

26 (C) collect data and analyze acquisition workforce data from the 

27 Office of Personnel Management, from the heads of executive 

28 agencies, and, through periodic surveys, from individual employees; 

29 (D) periodically analyze acquisition career fields to identify crit30 ical competencies, duties, tasks, and related academic pre31 requisites, skills, and knowledge; 

32 (E) coordinate and assist agencies in identifying and recruiting 

33 highly qualified candidates for acquisition fields; 

34 (F) develop instructional materials for acquisition personnel in 

35 coordination with private and public acquisition colleges and train36 ing facilities; 

37 (G) evaluate the effectiveness of training and career develop38 ment programs for acquisition personnel; 

39 (H) promote the establishment and utilization of academic pro40 grams by colleges and universities in acquisition fields; 


hsrobinson on PROD1PC76 with BILLS
13 

HR 1107 RH 

1 (I) facilitate, to the extent requested by agencies, interagency 

2 intern and training programs; and 

3 (J) perform other career management or research functions as 

4 directed by the Administrator; 

5 (6) administering section 1703(a) to (i) of this title; 

6 (7) establishing criteria and procedures to ensure the effective and 

7 timely solicitation of the viewpoints of interested parties in the develop8 ment of procurement policies, regulations, procedures, and forms; 

9 (8) developing standard contract forms and contract language in 

10 order to reduce the Federal Government’s cost of procuring property 

11 and services and the private sector’s cost of doing business with the 

12 Federal Government; 

13 (9) providing for a Government-wide award to recognize and promote 

14 vendor excellence; 

15 (10) providing for a Government-wide award to recognize and pro16 mote excellence in officers and employees of the Federal Government 

17 serving in procurement-related positions; 

18 (11) developing policies, in consultation with the Administrator of 

19 the Small Business Administration, that ensure that small businesses, 

20 qualified HUBZone small business concerns (as defined in section 3(p) 

21 of the Small Business Act (15 U.S.C. 632(p))), small businesses owned 

22 and controlled by socially and economically disadvantaged individuals, 

23 and small businesses owned and controlled by women are provided with 

24 the maximum practicable opportunities to participate in procurements 

25 that are conducted for amounts below the simplified acquisition thresh26 old; 

27 (12) developing policies that will promote achievement of goals for 

28 participation by small businesses, small business concerns owned and 

29 controlled by service-disabled veterans, qualified HUBZone small busi30 ness concerns (as defined in section 3(p) of the Small Business Act (15 

31 U.S.C. 632(p))), small businesses owned and controlled by socially and 

32 economically disadvantaged individuals, and small businesses owned 

33 and controlled by women; and 

34 (13) completing action, as appropriate, on the recommendations of 

35 the Commission on Government Procurement. 

36 (b) CONSULTATION AND ASSISTANCE.—In carrying out the functions in 

37 subsection (a), the Administrator— 

38 (1) shall consult with the affected executive agencies, including the 

39 Small Business Administration; 


hsrobinson on PROD1PC76 with BILLS
14 

HR 1107 RH 

1 (2) with the concurrence of the heads of affected executive agencies, 

2 may designate one or more executive agencies to assist in performing 

3 those functions; and 

4 (3) may establish advisory committees or other interagency groups 

5 to assist in providing for the establishment, development, and mainte6 nance of a single system of simplified Government-wide procurement 

7 regulations and to assist in performing any other function the Adminis8 trator considers appropriate. 

9 (c) ASSIGNMENT, DELEGATION, OR TRANSFER.— 

10 (1) TO ADMINISTRATOR.—Except as otherwise provided by law, only 

11 duties, functions, or responsibilities expressly assigned by this division 

12 shall be assigned, delegated, or transferred to the Administrator. 

13 (2) BY ADMINISTRATOR.— 

14 (A) WITHIN OFFICE.—The Administrator may make and au15 thorize delegations within the Office of Federal Procurement Pol16 icy that the Administrator determines to be necessary to carry out 

17 this division. 

18 (B) TO ANOTHER EXECUTIVE AGENCY.—The Administrator 

19 may delegate, and authorize successive redelegations of, an author20 ity, function, or power of the Administrator under this division 

21 (other than the authority to provide overall direction of Federal 

22 procurement policy and to prescribe policies and regulations to 

23 carry out the policy) to another executive agency with the consent 

24 of the head of the executive agency or at the direction of the 

25 President. 

26 § 1123. Small business concerns 

27 In formulating the Federal Acquisition Regulation and procedures to en28 sure compliance with the Regulation, the Administrator, in consultation with 

29 the Small Business Administration, shall— 

30 (1) conduct analyses of the impact on small business concerns result31 ing from revised procurement regulations; and 

32 (2) incorporate into revised procurement regulations simplified bid33 ding, contract performance, and contract administration procedures for 

34 small business concerns. 

35 § 1124. Tests of innovative procurement methods and proce36 dures 

37 (a) IN GENERAL.—The Administrator may develop innovative procure38 ment methods and procedures to be tested by selected executive agencies. 

39 In developing a program to test innovative procurement methods and proce40 dures under this subsection, the Administrator shall consult with the heads 

41 of executive agencies to— 


hsrobinson on PROD1PC76 with BILLS
15 

HR 1107 RH 

1 (1) ascertain the need for and specify the objectives of the program; 

2 (2) develop the guidelines and procedures for carrying out the pro3 gram and the criteria to be used in measuring the success of the pro4 gram; 

5 (3) evaluate the potential costs and benefits which may be derived 

6 from the innovative procurement methods and procedures tested under 

7 the program; 

8 (4) select the appropriate executive agencies or components of execu9 tive agencies to carry out the program; 

10 (5) specify the categories and types of products or services to be pro11 cured under the program; and 

12 (6) develop the methods to be used to analyze the results of the pro13 gram. 

14 (b) APPROVAL OF EXECUTIVE AGENCIES REQUIRED.—A program to test 

15 innovative procurement methods and procedures may not be carried out un16 less approved by the heads of the executive agencies selected to carry out 

17 the program. 

18 (c) REQUEST FOR WAIVER OF LAW.—If the Administrator determines 

19 that it is necessary to waive the application of a provision of law to carry 

20 out a proposed program to test innovative procurement methods and proce21 dures under subsection (a), the Administrator shall transmit notice of the 

22 proposed program to the Committee on Oversight and Government Reform 

23 of the House of Representatives and the Committee on Homeland Security 

24 and Governmental Affairs of the Senate and request that the Committees 

25 take the necessary action to provide that the provision of law does not apply 

26 with respect to the proposed program. The notification to Congress shall in27 clude— 

28 (1) a description of the proposed program (including the scope and 

29 purpose of the proposed program); 

30 (2) the procedures to be followed in carrying out the proposed pro31 gram; 

32 (3) the provisions of law affected and the application of any provi33 sion of law that must be waived in order to carry out the proposed pro34 gram; and 

35 (4) the executive agencies involved in carrying out the proposed pro36 gram. 

37 § 1125. Recipients of Federal grants or assistance 

38 (a) AUTHORITY.—With due regard to applicable laws and the program 

39 activities of the executive agencies administering Federal programs of 

40 grants or assistance, the Administrator may prescribe Government-wide 

41 policies, regulations, procedures, and forms that the Administrator considers 


hsrobinson on PROD1PC76 with BILLS
16 

HR 1107 RH 

1 appropriate and that executive agencies shall follow in providing for the pro2 curement, to the extent required under those programs, of property or serv3 ices referred to in section 1121(c)(1) of this title by recipients of Federal 

4 grants or assistance under the programs. 

5 (b) LIMITATION.—Subsection (a) does not— 

6 (1) permit the Administrator to authorize procurement or supply 

7 support, either directly or indirectly, to a recipient of a Federal grant 

8 or assistance; or 

9 (2) authorize action by a recipient contrary to State and local law 

10 in the case of a program to provide a Federal grant or assistance to 

11 a State or political subdivision. 

12 § 1126. Policy regarding consideration of contractor past 

13 performance 

14 (a) GUIDANCE.—The Administrator shall prescribe for executive agencies 

15 guidance regarding consideration of the past contract performance of 

16 offerors in awarding contracts. The guidance shall include— 

17 (1) standards for evaluating past performance with respect to cost 

18 (when appropriate), schedule, compliance with technical or functional 

19 specifications, and other relevant performance factors that facilitate 

20 consistent and fair evaluation by all executive agencies; 

21 (2) policies for the collection and maintenance of information on past 

22 contract performance that, to the maximum extent practicable, facili23 tate automated collection, maintenance, and dissemination of informa24 tion and provide for ease of collection, maintenance, and dissemination 

25 of information by other methods, as necessary; 

26 (3) policies for ensuring that— 

27 (A) offerors are afforded an opportunity to submit relevant in28 formation on past contract performance, including performance 

29 under contracts entered into by the executive agency concerned, 

30 other departments and agencies of the Federal Government, agen31 cies of State and local governments, and commercial customers; 

32 and 

33 (B) the information submitted by offerors is considered; and 

34 (4) the period for which information on past performance of offerors 

35 may be maintained and considered. 

36 (b) INFORMATION NOT AVAILABLE.—If there is no information on past 

37 contract performance of an offeror or the information on past contract per38 formance is not available, the offeror may not be evaluated favorably or un39 favorably on the factor of past contract performance. 

40 § 1127. Determining benchmark compensation amount 

41 (a) DEFINITIONS.—In this section: 


hsrobinson on PROD1PC76 with BILLS
17 

HR 1107 RH 

1 (1) BENCHMARK COMPENSATION AMOUNT.—The term ‘‘benchmark 

2 compensation amount’’, for a fiscal year, is the median amount of the 

3 compensation provided for all senior executives of all benchmark cor4 porations for the most recent year for which data is available at the 

5 time the determination under subsection (b) is made. 

6 (2) BENCHMARK CORPORATION.—The term ‘‘benchmark corpora7 tion’’, with respect to a fiscal year, means a publicly-owned United 

8 States corporation that has annual sales in excess of $50,000,000 for 

9 the fiscal year. 

10 (3) COMPENSATION.—The term ‘‘compensation’’, for a fiscal year, 

11 means the total amount of wages, salary, bonuses, and deferred com12 pensation for the fiscal year, whether paid, earned, or otherwise accru13 ing, as recorded in an employer’s cost accounting records for the fiscal 

14 year. 

15 (4) FISCAL YEAR.—The term ‘‘fiscal year’’ means a fiscal year a 

16 contractor establishes for accounting purposes. 

17 (5) PUBLICLY-OWNED UNITED STATES CORPORATION.—The term 

18 ‘‘publicly-owned United States corporation’’ means a corporation— 

19 (A) organized under the laws of a State of the United States, 

20 the District of Columbia, Puerto Rico, or a possession of the 

21 United States; and 

22 (B) whose voting stock is publicly traded. 

23 (6) SENIOR EXECUTIVES.—The term ‘‘senior executives’’, with re24 spect to a contractor, means the 5 most highly compensated employees 

25 in management positions at each home office and each segment of the 

26 contractor. 

27 (b) DETERMINING BENCHMARK COMPENSATION AMOUNT.—For purposes 

28 of section 4304(a)(16) of this title and section 2324(e)(1)(P) of title 10, 

29 the Administrator shall review commercially available surveys of executive 

30 compensation and, on the basis of the results of the review, determine a 

31 benchmark compensation amount to apply for each fiscal year. In making 

32 determinations under this subsection, the Administrator shall consult with 

33 the Director of the Defense Contract Audit Agency and other officials of 

34 executive agencies as the Administrator considers appropriate. 

35 § 1128. Maintaining necessary capability with respect to ac36 quisition of architectural and engineering services 

37 The Administrator, in consultation with the Secretary of Defense, the Ad38 ministrator of General Services, and the Director of the Office of Personnel 

39 Management, shall develop and implement a plan to ensure that the Federal 

40 Government maintains the necessary capability with respect to the acquisi41 tion of architectural and engineering services to— 


hsrobinson on PROD1PC76 with BILLS
18 

HR 1107 RH 

1 (1) ensure that Federal Government employees have the expertise to 

2 determine agency requirements for those services; 

3 (2) establish priorities and programs, including acquisition plans; 

4 (3) establish professional standards; 

5 (4) develop scopes of work; and 

6 (5) award and administer contracts for those services. 

7 § 1129. Center of excellence in contracting for services 

8 The Administrator shall maintain a center of excellence in contracting for 

9 services. The center shall assist the acquisition community by identifying, 

10 and serving as a clearinghouse for, best practices in contracting for services 

11 in the public and private sectors. 

12 § 1130. Effect of division on other law 

13 This division does not impair or affect the authorities or responsibilities 

14 relating to the procurement of real property conferred by division C of this 

15 subtitle and chapters 1 to 11 of title 40. 

16 § 1131. Annual report 

17 The Administrator annually shall submit to Congress an assessment of 

18 the progress made in executive agencies in implementing the policy regard19 ing major acquisitions that is stated in section 3103(a) of this title. The 

20 Administrator shall use data from existing management systems in making 

21 the assessment. 

22 CHAPTER 13—ACQUISITION COUNCILS 

SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY COUNCIL 

Sec. 

1301. Definition. 

1302. Establishment and membership. 

1303. Functions and authority. 

1304. Contract clauses and certifications. 

SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL 

1311. Establishment and membership. 

1312. Functions. 

23 SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY 

24 COUNCIL 

25 § 1301. Definition 

26 In this subchapter, the term ‘‘Council’’ means the Federal Acquisition 

27 Regulatory Council established under section 1302(a) of this title. 

28 § 1302. Establishment and membership 

29 (a) ESTABLISHMENT.—There is a Federal Acquisition Regulatory Council 

30 to assist in the direction and coordination of Government-wide procurement 

31 policy and Government-wide procurement regulatory activities in the Fed32 eral Government. 

33 (b) MEMBERSHIP.— 

34 (1) MAKEUP OF COUNCIL.—The Council consists of— 

35 (A) the Administrator; 


hsrobinson on PROD1PC76 with BILLS
19 

HR 1107 RH 

1 (B) the Secretary of Defense; 

2 (C) the Administrator of National Aeronautics and Space; and 

3 (D) the Administrator of General Services. 

4 (2) DESIGNATION OF OTHER OFFICIALS.— 

5 (A) OFFICIALS WHO MAY BE DESIGNATED.—Notwithstanding 

6 section 121(d)(1) and (2) of title 40, the officials specified in sub7 paragraphs (B) to (D) of paragraph (1) may designate to serve 

8 on and attend meetings of the Council in place of that official— 

9 (i) the official assigned by statute with the responsibility 

10 for acquisition policy in each of their respective agencies or, 

11 in the case of the Secretary of Defense, an official at an orga12 nizational level not lower than an Assistant Secretary of De13 fense within the Office of the Under Secretary of Defense for 

14 Acquisition, Technology, and Logistics; or 

15 (ii) if no official of that agency is assigned by statute with 

16 the responsibility for acquisition policy for that agency, the 

17 official designated pursuant to section 1702(c) of this title. 

18 (B) LIMITATION ON DESIGNATION.—No other official or em19 ployee may be designated to serve on the Council. 

20 § 1303. Functions and authority 

21 (a) FUNCTIONS.— 

22 (1) ISSUE AND MAINTAIN FEDERAL ACQUISITION REGULATION.— 

23 Subject to sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, 

24 and 2305 of this title, the Administrator of General Services, the Sec25 retary of Defense, and the Administrator of National Aeronautics and 

26 Space, pursuant to their respective authorities under division C of this 

27 subtitle, chapters 4 and 137 of title 10, and the National Aeronautics 

28 and Space Act of 1958 (42 U.S.C. 2451 et seq.), shall jointly issue and 

29 maintain in accordance with subsection (d) a single Government-wide 

30 procurement regulation, to be known as the Federal Acquisition Regu31 lation. 

32 (2) LIMITATION ON OTHER REGULATIONS.—Other regulations relat33 ing to procurement issued by an executive agency shall be limited to— 

34 (A) regulations essential to implement Government-wide policies 

35 and procedures within the agency; and 

36 (B) additional policies and procedures required to satisfy the 

37 specific and unique needs of the agency. 

38 (3) ENSURE CONSISTENT REGULATIONS.—The Administrator, in 

39 consultation with the Council, shall ensure that procurement regula40 tions prescribed by executive agencies are consistent with the Federal 


hsrobinson on PROD1PC76 with BILLS
20 

HR 1107 RH 

1 Acquisition Regulation and in accordance with the policies prescribed 

2 pursuant to section 1121(b) of this title. 

3 (4) REQUEST TO REVIEW REGULATION.— 

4 (A) BASIS FOR REQUEST.—Under procedures the Administrator 

5 establishes, a person may request the Administrator to review a 

6 regulation relating to procurement on the basis that the regulation 

7 is inconsistent with the Federal Acquisition Regulation. 

8 (B) PERIOD OF REVIEW.—Unless the request is frivolous or 

9 does not, on its face, state a valid basis for the review, the Admin10 istrator shall complete the review not later than 60 days after re11 ceiving the request. The time for completion of the review may be 

12 extended if the Administrator determines that an additional period 

13 of review is required. The Administrator shall advise the requester 

14 of the reasons for the extension and the date by which the review 

15 will be completed. 

16 (5) WHEN REGULATION IS INCONSISTENT OR NEEDS TO BE IM17 PROVED.—If the Administrator determines that a regulation relating to 

18 procurement is inconsistent with the Federal Acquisition Regulation or 

19 that the regulation otherwise should be revised to remove an inconsist20 ency with the policies prescribed under section 1121(b) of this title, the 

21 Administrator shall rescind or deny the promulgation of the regulation 

22 or take other action authorized under sections 1121, 1122(a) to (c)(1), 

23 1125, 1126, 1130, 1131, and 2305 of this title as may be necessary 

24 to remove the inconsistency. If the Administrator determines that the 

25 regulation, although not inconsistent with the Federal Acquisition Reg26 ulation or those policies, should be revised to improve compliance with 

27 the Regulation or policies, the Administrator shall take action author28 ized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, 

29 and 2305 as may be necessary and appropriate. 

30 (6) DECISIONS TO BE IN WRITING AND PUBLICLY AVAILABLE.—The 

31 decisions of the Administrator shall be in writing and made publicly 

32 available. 

33 (b) ADDITIONAL RESPONSIBILITIES OF MEMBERSHIP.— 

34 (1) IN GENERAL.—Subject to the authority, direction, and control of 

35 the head of the agency concerned, each official who represents an agen36 cy on the Council pursuant to section 1302(b) of this title shall— 

37 (A) approve or disapprove all regulations relating to procure38 ment that are proposed for public comment, prescribed in final 

39 form, or otherwise made effective by that agency before the regula40 tion may be prescribed in final form, or otherwise made effective, 

41 except that the official may grant an interim approval, without reVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
21 

HR 1107 RH 

1 view, for not more than 60 days for a procurement regulation in 

2 urgent and compelling circumstances; 

3 (B) carry out the responsibilities of that agency set forth in 

4 chapter 35 of title 44 for each information collection request that 

5 relates to procurement rules or regulations; and 

6 (C) eliminate or reduce— 

7 (i) any redundant or unnecessary levels of review and ap8 proval in the procurement system of that agency; and 

9 (ii) redundant or unnecessary procurement regulations 

10 which are unique to that agency. 

11 (2) LIMITATION ON DELEGATION.—The authority to review and ap12 prove or disapprove regulations under paragraph (1)(A) may not be 

13 delegated to an individual outside the office of the official who rep14 resents the agency on the Council pursuant to section 1302(b) of this 

15 title. 

16 (c) GOVERNING POLICIES.—All actions of the Council and of members of 

17 the Council shall be in accordance with and furtherance of the policies pre18 scribed under section 1121(b) of this title. 

19 (d) GENERAL AUTHORITY WITH RESPECT TO FEDERAL ACQUISITION

20 REGULATION.—Subject to section 1121(d) of this title, the Council shall 

21 manage, coordinate, control, and monitor the maintenance of, issuance of, 

22 and changes in, the Federal Acquisition Regulation. 

23 § 1304. Contract clauses and certifications 

24 (a) REPETITIVE NONSTANDARD CONTRACT CLAUSES DISCOURAGED.— 

25 The Council shall prescribe regulations to discourage the use of a non26 standard contract clause on a repetitive basis. The regulations shall include 

27 provisions that— 

28 (1) clearly define what types of contract clauses are to be treated 

29 as nonstandard clauses; and 

30 (2) require prior approval for the use of a nonstandard clause on a 

31 repetitive basis by an official at a level of responsibility above the con32 tracting officer. 

33 (b) WHEN CERTIFICATION REQUIRED.— 

34 (1) BY LAW.—A provision of law may not be construed as requiring 

35 a certification by a contractor or offeror in a procurement made or to 

36 be made by the Federal Government unless that provision of law spe37 cifically provides that such a certification shall be required. 

38 (2) IN FEDERAL ACQUISITION REGULATION.—A requirement for a 

39 certification by a contractor or offeror may not be included in the Fed40 eral Acquisition Regulation unless— 


hsrobinson on PROD1PC76 with BILLS
22 

HR 1107 RH 

1 (A) the certification requirement is specifically imposed by stat2 ute; or 

3 (B) written justification for the certification requirement is pro4 vided to the Administrator by the Council and the Administrator 

5 approves in writing the inclusion of the certification requirement. 

6 (3) EXECUTIVE AGENCY PROCUREMENT REGULATION.— 

7 (A) DEFINITION.—In subparagraph (B), the term ‘‘head of the 

8 executive agency’’ with respect to a military department means the 

9 Secretary of Defense. 

10 (B) WHEN CERTIFICATION REQUIREMENT MAY BE INCLUDED

11 IN REGULATION.—A requirement for a certification by a con12 tractor or offeror may not be included in a procurement regulation 

13 of an executive agency unless— 

14 (i) the certification requirement is specifically imposed by 

15 statute; or 

16 (ii) written justification for the certification requirement is 

17 provided to the head of the executive agency by the senior 

18 procurement executive of the agency and the head of the exec19 utive agency approves in writing the inclusion of the certifi20 cation requirement. 

21 SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL 

22 § 1311. Establishment and membership 

23 (a) ESTABLISHMENT.—There is in the executive branch a Chief Acquisi24 tion Officers Council. 

25 (b) MEMBERSHIP.—The members of the Council are— 

26 (1) the Deputy Director for Management of the Office of Manage27 ment and Budget; 

28 (2) the Administrator; 

29 (3) the Under Secretary of Defense for Acquisition, Technology, and 

30 Logistics; 

31 (4) the chief acquisition officer of each executive agency that is re32 quired to have a chief acquisition officer under section 1702 of this 

33 title and the senior procurement executive of each military department; 

34 and 

35 (5) any other senior agency officer of each executive agency, ap36 pointed by the head of the agency in consultation with the Chairman 

37 of the Council, who can effectively assist the Council in performing the 

38 functions set forth in section 1312(b) of this title and supporting the 

39 associated range of acquisition activities. 

40 (c) LEADERSHIP AND SUPPORT.— 


hsrobinson on PROD1PC76 with BILLS
23 

HR 1107 RH 

1 (1) CHAIRMAN.—The Deputy Director for Management of the Office 

2 of Management and Budget is the Chairman of the Council. 

3 (2) VICE CHAIRMAN.—The Vice Chairman of the Council shall be se4 lected by the Council from among its members. The Vice Chairman 

5 serves for one year and may serve multiple terms. 

6 (3) LEADER OF ACTIVITIES.—The Administrator shall lead the ac7 tivities of the Council on behalf of the Deputy Director for Manage8 ment. 

9 (4) SUPPORT.—The Administrator of General Services shall provide 

10 administrative and other support for the Council. 

11 § 1312. Functions 

12 (a) PRINCIPAL FORUM.—The Chief Acquisition Officers Council is the 

13 principal interagency forum for monitoring and improving the Federal ac14 quisition system. 

15 (b) FUNCTIONS.—The Council shall perform functions that include the 

16 following: 

17 (1) Develop recommendations for the Director of the Office of Man18 agement and Budget on Federal acquisition policies and requirements. 

19 (2) Share experiences, ideas, best practices, and innovative ap20 proaches related to Federal acquisition. 

21 (3) Assist the Administrator in the identification, development, and 

22 coordination of multiagency projects and other innovative initiatives to 

23 improve Federal acquisition. 

24 (4) Promote effective business practices that ensure the timely deliv25 ery of best value products to the Federal Government and achieve ap26 propriate public policy objectives. 

27 (5) Further integrity, fairness, competition, openness, and efficiency 

28 in the Federal acquisition system. 

29 (6) Work with the Office of Personnel Management to assess and ad30 dress the hiring, training, and professional development needs of the 

31 Federal Government related to acquisition. 

32 (7) Work with the Administrator and the Federal Acquisition Regu33 latory Council to promote the business practices referred to in para34 graph (4) and other results of the functions carried out under this sub35 section. 

36 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. 


hsrobinson on PROD1PC76 with BILLS
24 

HR 1107 RH 

1 § 1501. Cost Accounting Standards Board 

2 (a) ORGANIZATION.—The Cost Accounting Standards Board is an inde3 pendent board in the Office of Federal Procurement Policy. 

4 (b) MEMBERSHIP.— 

5 (1) NUMBER OF MEMBERS, CHAIRMAN, AND APPOINTMENT.—The 

6 Board consists of 5 members. One member is the Administrator, who 

7 serves as Chairman. The other 4 members, all of whom shall have expe8 rience in Federal Government contract cost accounting, are as follows: 

9 (A) 2 representatives of the Federal Government— 

10 (i) one of whom is a representative of the Department of 

11 Defense appointed by the Secretary of Defense; and 

12 (ii) one of whom is an officer or employee of the General 

13 Services Administration appointed by the Administrator of 

14 General Services. 

15 (B) 2 individuals from the private sector, each of whom is ap16 pointed by the Administrator, and— 

17 (i) one of whom is a representative of industry; and 

18 (ii) one of whom is particularly knowledgeable about cost 

19 accounting problems and systems. 

20 (2) TERM OF OFFICE.— 

21 (A) LENGTH OF TERM.—The term of office of each member, 

22 other than the Administrator, is 4 years. The terms are staggered, 

23 with the terms of 2 members expiring in the same year, the term 

24 of another member expiring the next year, and the term of the last 

25 member expiring the year after that. 

26 (B) INDIVIDUAL REQUIRED TO REMAIN WITH APPOINTING

27 AGENCY.—A member appointed under paragraph (1)(A) may not 

28 continue to serve after ceasing to be an officer or employee of the 

29 agency from which that member was appointed. 

30 (3) VACANCY.—A vacancy on the Board shall be filled in the same 

31 manner in which the original appointment was made. A member ap32 pointed to fill a vacancy serves for the remainder of the term for which 

33 that member’s predecessor was appointed. 

34 (c) SENIOR STAFF.—The Administrator, after consultation with the 

35 Board, may— 

36 (1) appoint an executive secretary and 2 additional staff members 

37 without regard to the provisions of title 5 governing appointments in 

38 the competitive service; and 

39 (2) pay those employees without regard to the provisions of chapter 

40 51 and subchapter III of chapter 53 of title 5 relating to classification 

41 and General Schedule pay rates, except that those employees may not 


hsrobinson on PROD1PC76 with BILLS
25 

HR 1107 RH 

1 receive pay in excess of the maximum rate of basic pay payable under 

2 section 5376 of title 5. 

3 (d) OTHER STAFF.—The Administrator may appoint, fix the compensa4 tion of, and remove additional employees of the Board under the applicable 

5 provisions of title 5. 

6 (e) DETAILED AND TEMPORARY PERSONNEL.—For service on advisory 

7 committees and task forces to assist the Board in carrying out its functions 

8 and responsibilities— 

9 (1) the Board, with the consent of the head of a Federal agency, 

10 may use, without reimbursement, personnel of that agency; and 

11 (2) the Administrator, after consultation with the Board, may pro12 cure temporary and intermittent services of personnel under section 

13 3109(b) of title 5. 

14 (f) COMPENSATION.— 

15 (1) OFFICERS AND EMPLOYEES OF THE GOVERNMENT.—Members of 

16 the Board who are officers or employees of the Federal Government, 

17 and officers and employees of other agencies of the Federal Govern18 ment who are used under subsection (e)(1), shall not receive additional 

19 compensation for services but shall continue to be compensated by the 

20 employing department or agency of the officer or employee. 

21 (2) APPOINTEES FROM PRIVATE SECTOR.—Each member of the 

22 Board appointed from the private sector shall receive compensation at 

23 a rate not to exceed the daily equivalent of the rate for level IV of the 

24 Executive Schedule for each day (including travel time) in which the 

25 member is engaged in the actual performance of duties vested in the 

26 Board. 

27 (3) TEMPORARY AND INTERMITTENT PERSONNEL.—An individual 

28 hired under subsection (e)(2) may receive compensation at a rate fixed 

29 by the Administrator, but not to exceed the daily equivalent of the rate 

30 for level V of the Executive Schedule for each day (including travel 

31 time) in which the individual is properly engaged in the actual perform32 ance of duties under this chapter. 

33 (4) TRAVEL EXPENSES.—While serving away from home or regular 

34 place of business, Board members and other individuals serving on an 

35 intermittent basis under this chapter shall be allowed travel expenses 

36 in accordance with section 5703 of title 5. 

37 § 1502. Cost accounting standards 

38 (a) AUTHORITY.— 

39 (1) COST ACCOUNTING STANDARDS BOARD.—The Cost Accounting 

40 Standards Board has exclusive authority to prescribe, amend, and re41 scind cost accounting standards, and interpretations of the standards, 


hsrobinson on PROD1PC76 with BILLS
26 

HR 1107 RH 

1 designed to achieve uniformity and consistency in the cost accounting 

2 standards governing measurement, assignment, and allocation of costs 

3 to contracts with the Federal Government. 

4 (2) ADMINISTRATOR FOR FEDERAL PROCUREMENT POLICY.—The 

5 Administrator, after consultation with the Board, shall prescribe rules 

6 and procedures governing actions of the Board under this chapter. The 

7 rules and procedures shall require that any action to prescribe, amend, 

8 or rescind a standard or interpretation be approved by majority vote 

9 of the Board. 

10 (b) MANDATORY USE OF STANDARDS.— 

11 (1) SUBCONTRACT.— 

12 (A) DEFINITION.—In this paragraph, the term ‘‘subcontract’’ 

13 includes a transfer of commercial items between divisions, subsidi14 aries, or affiliates of a contractor or subcontractor. 

15 (B) WHEN STANDARDS ARE TO BE USED.—Cost accounting 

16 standards prescribed under this chapter are mandatory for use by 

17 all executive agencies and by contractors and subcontractors in es18 timating, accumulating, and reporting costs in connection with the 

19 pricing and administration of, and settlement of disputes con20 cerning, all negotiated prime contract and subcontract procure21 ments with the Federal Government in excess of the amount set 

22 forth in section 2306a(a)(1)(A)(i) of title 10 as the amount is ad23 justed in accordance with applicable requirements of law. 

24 (C) NONAPPLICATION OF STANDARDS.—Subparagraph (B) does 

25 not apply to— 

26 (i) a contract or subcontract for the acquisition of a com27 mercial item; 

28 (ii) a contract or subcontract where the price negotiated is 

29 based on a price set by law or regulation; 

30 (iii) a firm, fixed-price contract or subcontract awarded on 

31 the basis of adequate price competition without submission of 

32 certified cost or pricing data; or 

33 (iv) a contract or subcontract with a value of less than 

34 $7,500,000 if, when the contract or subcontract is entered 

35 into, the segment of the contractor or subcontractor that will 

36 perform the work has not been awarded at least one contract 

37 or subcontract with a value of more than $7,500,000 that is 

38 covered by the standards. 

39 (2) EXEMPTIONS AND WAIVERS BY BOARD.—The Board may— 

40 (A) exempt classes of contractors and subcontractors from the 

41 requirements of this chapter; and 


hsrobinson on PROD1PC76 with BILLS
27 

HR 1107 RH 

1 (B) establish procedures for the waiver of the requirements of 

2 this chapter for individual contracts and subcontracts. 

3 (3) WAIVER BY HEAD OF EXECUTIVE AGENCY.— 

4 (A) IN GENERAL.—The head of an executive agency may waive 

5 the applicability of the cost accounting standards for a contract 

6 or subcontract with a value of less than $15,000,000 if that offi7 cial determines in writing that the segment of the contractor or 

8 subcontractor that will perform the work— 

9 (i) is primarily engaged in the sale of commercial items; 

10 and 

11 (ii) would not otherwise be subject to the cost accounting 

12 standards under this section. 

13 (B) IN EXCEPTIONAL CIRCUMSTANCES.—The head of an execu14 tive agency may waive the applicability of the cost accounting 

15 standards for a contract or subcontract under exceptional cir16 cumstances when necessary to meet the needs of the agency. A de17 termination to waive the applicability of the standards under this 

18 subparagraph shall be set forth in writing and shall include a 

19 statement of the circumstances justifying the waiver. 

20 (C) RESTRICTION ON DELEGATION OF AUTHORITY.—The head 

21 of an executive agency may not delegate the authority under sub22 paragraph (A) or (B) to an official in the executive agency below 

23 the senior policymaking level in the executive agency. 

24 (D) CONTENTS OF FEDERAL ACQUISITION REGULATION.—The 

25 Federal Acquisition Regulation shall include— 

26 (i) criteria for selecting an official to be delegated authority 

27 to grant waivers under subparagraph (A) or (B); and 

28 (ii) the specific circumstances under which the waiver may 

29 be granted. 

30 (E) REPORT.—The head of each executive agency shall report 

31 the waivers granted under subparagraphs (A) and (B) for that 

32 agency to the Board on an annual basis. 

33 (c) REQUIRED BOARD ACTION FOR PRESCRIBING STANDARDS AND IN34 TERPRETATIONS.—Before prescribing cost accounting standards and inter35 pretations, the Board shall— 

36 (1) take into account, after consultation and discussions with the 

37 Comptroller General, professional accounting organizations, contrac38 tors, and other interested parties— 

39 (A) the probable costs of implementation, including any infla40 tionary effects, compared to the probable benefits; 


hsrobinson on PROD1PC76 with BILLS
28 

HR 1107 RH 

1 (B) the advantages, disadvantages, and improvements antici2 pated in the pricing and administration of, and settlement of dis3 putes concerning, contracts; and 

4 (C) the scope of, and alternatives available to, the action pro5 posed to be taken; 

6 (2) prepare and publish a report in the Federal Register on the 

7 issues reviewed under paragraph (1); 

8 (3)(A) publish an advanced notice of proposed rulemaking in the 

9 Federal Register to solicit comments on the report prepared under 

10 paragraph (2); 

11 (B) provide all parties affected at least 60 days after publication to 

12 submit their views and comments; and 

13 (C) during the 60-day period, consult with the Comptroller General 

14 and consider any recommendation the Comptroller General may make; 

15 and 

16 (4) publish a notice of proposed rulemaking in the Federal Register 

17 and provide all parties affected at least 60 days after publication to 

18 submit their views and comments. 

19 (d) EFFECTIVE DATES.—Rules, regulations, cost accounting standards, 

20 and modifications thereof prescribed or amended under this chapter shall 

21 have the full force and effect of law, and shall become effective within 120 

22 days after publication in the Federal Register in final form, unless the 

23 Board determines that a longer period is necessary. The Board shall deter24 mine implementation dates for contractors and subcontractors. The dates 

25 may not be later than the beginning of the second fiscal year of the con26 tractor or subcontractor after the standard becomes effective. 

27 (e) ACCOMPANYING MATERIAL.—Rules, regulations, cost accounting 

28 standards, and modifications thereof prescribed or amended under this 

29 chapter shall be accompanied by prefatory comments and by illustrations, 

30 if necessary. 

31 (f) IMPLEMENTING REGULATIONS.—The Board shall prescribe regula32 tions for the implementation of cost accounting standards prescribed or in33 terpreted under this section. The regulations shall be incorporated into the 

34 Federal Acquisition Regulation and shall require contractors and sub35 contractors as a condition of contracting with the Federal Government to— 

36 (1) disclose in writing their cost accounting practices, including 

37 methods of distinguishing direct costs from indirect costs and the basis 

38 used for allocating indirect costs; and 

39 (2) agree to a contract price adjustment, with interest, for any in40 creased costs paid to the contractor or subcontractor by the Federal 

41 Government because of a change in the contractor’s or subcontractor’s 


hsrobinson on PROD1PC76 with BILLS
29 

HR 1107 RH 

1 cost accounting practices or a failure by the contractor or subcon2 tractor to comply with applicable cost accounting standards. 

3 (g) NONAPPLICABILITY OF CERTAIN SECTIONS OF TITLE 5.—Functions 

4 exercised under this chapter are not subject to sections 551, 553 to 559, 

5 and 701 to 706 of title 5. 

6 § 1503. Contract price adjustment 

7 (a) DISAGREEMENT CONSTITUTES A DISPUTE.—If the Federal Govern8 ment and a contractor or subcontractor fail to agree on a contract price ad9 justment, including whether the contractor or subcontractor has complied 

10 with the applicable cost accounting standards, the disagreement will con11 stitute a dispute under chapter 71 of this title. 

12 (b) AMOUNT OF ADJUSTMENT.—A contract price adjustment undertaken 

13 under section 1502(f)(2) of this title shall be made, where applicable, on 

14 relevant contracts between the Federal Government and the contractor that 

15 are subject to the cost accounting standards so as to protect the Federal 

16 Government from payment, in the aggregate, of increased costs, as defined 

17 by the Cost Accounting Standards Board. The Federal Government may not 

18 recover costs greater than the aggregate increased cost to the Federal Gov19 ernment, as defined by the Board, on the relevant contracts subject to the 

20 price adjustment unless the contractor made a change in its cost accounting 

21 practices of which it was aware or should have been aware at the time of 

22 the price negotiation and which it failed to disclose to the Federal Govern23 ment. 

24 (c) INTEREST.—The interest rate applicable to a contract price adjust25 ment is the annual rate of interest established under section 6621 of the 

26 Internal Revenue Code of 1986 (26 U.S.C. 6621) for the period. Interest 

27 accrues from the time payments of the increased costs were made to the 

28 contractor or subcontractor to the time the Federal Government receives full 

29 compensation for the price adjustment. 

30 § 1504. Effect on other standards and regulations 

31 (a) PREVIOUSLY EXISTING STANDARDS.—All cost accounting standards, 

32 waivers, exemptions, interpretations, modifications, rules, and regulations 

33 prescribed by the Cost Accounting Standards Board under section 719 of 

34 the Defense Production Act of 1950 (50 U.S.C. App. 2168)— 

35 (1) remain in effect until amended, superseded, or rescinded by the 

36 Board under this chapter; and 

37 (2) are subject to the provisions of this division in the same manner 

38 as if prescribed by the Board under this division. 

39 (b) INCONSISTENT AGENCY REGULATIONS.—To ensure that a regulation 

40 or proposed regulation of an executive agency is not inconsistent with a cost 

41 accounting standard prescribed or amended under this chapter, the AdminVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
30 

HR 1107 RH 

1 istrator, under the authority in sections 1121, 1122(a) to (c)(1), 1125, 

2 1126, 1130, 1131, and 2305 of this title, shall rescind or deny the promul3 gation of the inconsistent regulation or proposed regulation and take other 

4 appropriate action authorized under sections 1121, 1122(a) to (c)(1), 1125, 

5 1126, 1130, 1131, and 2305. 

6 (c) COSTS NOT SUBJECT TO DIFFERENT STANDARDS.—Costs that are 

7 the subject of cost accounting standards prescribed under this chapter are 

8 not subject to regulations established by another executive agency that dif9 fer from those standards with respect to the measurement, assignment, and 

10 allocation of those costs. 

11 § 1505. Examinations 

12 To determine whether a contractor or subcontractor has complied with 

13 cost accounting standards prescribed under this chapter and has followed 

14 consistently the contractor’s or subcontractor’s disclosed cost accounting 

15 practices, an authorized representative of the head of the agency concerned, 

16 of the offices of inspector general established under the Inspector General 

17 Act of 1978 (5 U.S.C. App.), or of the Comptroller General shall have the 

18 right to examine and copy documents, papers, or records of the contractor 

19 or subcontractor relating to compliance with the standards. 

20 § 1506. Authorization of appropriations 

21 Necessary amounts may be appropriated to carry out this chapter. 

22 CHAPTER 17—AGENCY RESPONSIBILITIES AND 

23 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. 

24 § 1701. Cooperation with the Administrator 

25 On the request of the Administrator, each executive agency shall— 

26 (1) make its services, personnel, and facilities available to the Office 

27 of Federal Procurement Policy to the greatest practicable extent for the 

28 performance of functions under this division; and 

29 (2) except when prohibited by law, furnish to the Administrator, and 

30 give the Administrator access to, all information and records in its pos31 session that the Administrator may determine to be necessary for the 

32 performance of the functions of the Office. 


hsrobinson on PROD1PC76 with BILLS
31 

HR 1107 RH 

1 § 1702. Chief Acquisition Officers and senior procurement 

2 executives 

3 (a) APPOINTMENT OR DESIGNATION OF CHIEF ACQUISITION OFFICER.— 

4 The head of each executive agency described in section 901(b)(1) (other 

5 than the Department of Defense) or 901(b)(2)(C) of title 31 with a Chief 

6 Financial Officer appointed or designated under section 901(a) of title 31 

7 shall appoint or designate a non-career employee as Chief Acquisition Offi8 cer for the agency. 

9 (b) AUTHORITY AND FUNCTIONS OF CHIEF ACQUISITION OFFICER.— 

10 (1) PRIMARY DUTY.—The primary duty of a Chief Acquisition Offi11 cer is acquisition management. 

12 (2) ADVICE AND ASSISTANCE.—A Chief Acquisition Officer shall ad13 vise and assist the head of the executive agency and other agency offi14 cials to ensure that the mission of the executive agency is achieved 

15 through the management of the agency’s acquisition activities. 

16 (3) OTHER FUNCTIONS.—The functions of each Chief Acquisition 

17 Officer include— 

18 (A) monitoring the performance of acquisition activities and ac19 quisition programs of the executive agency, evaluating the per20 formance of those programs on the basis of applicable performance 

21 measurements, and advising the head of the executive agency re22 garding the appropriate business strategy to achieve the mission 

23 of the executive agency; 

24 (B) increasing the use of full and open competition in the acqui25 sition of property and services by the executive agency by estab26 lishing policies, procedures, and practices that ensure that the ex27 ecutive agency receives a sufficient number of sealed bids or com28 petitive proposals from responsible sources to fulfill the Federal 

29 Government’s requirements (including performance and delivery 

30 schedules) at the lowest cost or best value considering the nature 

31 of the property or service procured; 

32 (C) increasing appropriate use of performance-based contracting 

33 and performance specifications; 

34 (D) making acquisition decisions consistent with all applicable 

35 laws and establishing clear lines of authority, accountability, and 

36 responsibility for acquisition decisionmaking within the executive 

37 agency; 

38 (E) managing the direction of acquisition policy for the execu39 tive agency, including implementation of the unique acquisition 

40 policies, regulations, and standards of the executive agency; 


hsrobinson on PROD1PC76 with BILLS
32 

HR 1107 RH 

1 (F) developing and maintaining an acquisition career manage2 ment program in the executive agency to ensure that there is an 

3 adequate professional workforce; and 

4 (G) as part of the strategic planning and performance evalua5 tion process required under section 306 of title 5 and sections 

6 1105(a)(28), 1115, 1116, and 9703 (added by section 5(a) of 

7 Public Law 103–62 (107 Stat. 289)) of title 31— 

8 (i) assessing the requirements established for agency per9 sonnel regarding knowledge and skill in acquisition resources 

10 management and the adequacy of those requirements for fa11 cilitating the achievement of the performance goals estab12 lished for acquisition management; 

13 (ii) developing strategies and specific plans for hiring, 

14 training, and professional development to rectify a deficiency 

15 in meeting those requirements; and 

16 (iii) reporting to the head of the executive agency on the 

17 progress made in improving acquisition management capa18 bility. 

19 (c) SENIOR PROCUREMENT EXECUTIVE.— 

20 (1) DESIGNATION.—The head of each executive agency shall des21 ignate a senior procurement executive. 

22 (2) RESPONSIBILITY.—The senior procurement executive is respon23 sible for management direction of the procurement system of the execu24 tive agency, including implementation of the unique procurement poli25 cies, regulations, and standards of the executive agency. 

26 (3) WHEN CHIEF ACQUISITION OFFICER APPOINTED OR DES27 IGNATED.—For an executive agency for which a Chief Acquisition Offi28 cer has been appointed or designated under subsection (a), the head 

29 of the executive agency shall— 

30 (A) designate the Chief Acquisition Officer as the senior pro31 curement executive for the executive agency; or 

32 (B) ensure that the senior procurement executive designated 

33 under paragraph (1) reports directly to the Chief Acquisition Offi34 cer without intervening authority. 

35 § 1703. Acquisition workforce 

36 (a) DESCRIPTION.—For purposes of this section, the acquisition work37 force of an agency consists of all employees serving in acquisition positions 

38 listed in subsection (g)(1)(A). 

39 (b) APPLICABILITY.— 


hsrobinson on PROD1PC76 with BILLS
33 

HR 1107 RH 

1 (1) NONAPPLICABILITY TO CERTAIN EXECUTIVE AGENCIES.—Except 

2 as provided in subsection (i), this section does not apply to an executive 

3 agency that is subject to chapter 87 of title 10. 

4 (2) APPLICABILITY OF PROGRAMS.—The programs established by 

5 this section apply to the acquisition workforce of each executive agency. 

6 (c) MANAGEMENT POLICIES.— 

7 (1) DUTIES OF HEAD OF EXECUTIVE AGENCY.— 

8 (A) ESTABLISH POLICIES AND PROCEDURES.—After consulta9 tion with the Administrator, the head of each executive agency 

10 shall establish policies and procedures for the effective manage11 ment (including accession, education, training, career development, 

12 and performance incentives) of the acquisition workforce of the 

13 agency. The development of acquisition workforce policies under 

14 this section shall be carried out consistent with the merit system 

15 principles set forth in section 2301(b) of title 5. 

16 (B) ENSURE UNIFORM IMPLEMENTATION.—The head of each 

17 executive agency shall ensure that, to the maximum extent prac18 ticable, acquisition workforce policies and procedures established 

19 are uniform in their implementation throughout the agency. 

20 (2) DUTIES OF ADMINISTRATOR.—The Administrator shall issue 

21 policies to promote uniform implementation of this section by executive 

22 agencies, with due regard for differences in program requirements 

23 among agencies that may be appropriate and warranted in view of the 

24 agency mission. The Administrator shall coordinate with the Deputy 

25 Director for Management of the Office of Management and Budget to 

26 ensure that the policies are consistent with the policies and procedures 

27 established, and enhanced system of incentives provided, pursuant to 

28 section 5051(c) of the Federal Acquisition Streamlining Act of 1994 

29 (Public Law 103–355, 108 Stat. 3351). The Administrator shall evalu30 ate the implementation of this section by executive agencies. 

31 (d) AUTHORITY AND RESPONSIBILITY OF SENIOR PROCUREMENT EXEC32 UTIVE.—Subject to the authority, direction, and control of the head of an 

33 executive agency, the senior procurement executive of the agency shall carry 

34 out all powers, functions, and duties of the head of the agency with respect 

35 to implementing this section. The senior procurement executive shall ensure 

36 that the policies of the head of the executive agency established in accord37 ance with this section are implemented throughout the agency. 

38 (e) COLLECTING AND MAINTAINING INFORMATION.—The Administrator 

39 shall ensure that the heads of executive agencies collect and maintain stand40 ardized information on the acquisition workforce related to implementing 

41 this section. To the maximum extent practicable, information requirements 


hsrobinson on PROD1PC76 with BILLS
34 

HR 1107 RH 

1 shall conform to standards the Director of the Office of Personnel Manage2 ment establishes for the Central Personnel Data File. 

3 (f) CAREER DEVELOPMENT.— 

4 (1) CAREER PATHS.— 

5 (A) IDENTIFICATION.—The head of each executive agency shall 

6 ensure that appropriate career paths for personnel who desire to 

7 pursue careers in acquisition are identified in terms of the edu8 cation, training, experience, and assignments necessary for career 

9 progression to the most senior acquisition positions. The head of 

10 each executive agency shall make available information on those 

11 career paths. 

12 (B) CRITICAL DUTIES AND TASKS.—For each career path, the 

13 head of each executive agency shall identify the critical acquisition14 related duties and tasks in which, at minimum, employees of the 

15 agency in the career path shall be competent to perform at full 

16 performance grade levels. For this purpose, the head of the execu17 tive agency shall provide appropriate coverage of the critical duties 

18 and tasks identified by the Director of the Federal Acquisition In19 stitute. 

20 (C) MANDATORY TRAINING AND EDUCATION.—For each career 

21 path, the head of each executive agency shall establish require22 ments for the completion of course work and related on-the-job 

23 training in the critical acquisition-related duties and tasks of the 

24 career path. The head of each executive agency also shall encour25 age employees to maintain the currency of their acquisition knowl26 edge and generally enhance their knowledge of related acquisition 

27 management disciplines through academic programs and other 

28 self-developmental activities. 

29 (2) PERFORMANCE INCENTIVES.—The head of each executive agency 

30 shall provide for an enhanced system of incentives to encourage excel31 lence in the acquisition workforce that rewards performance of employ32 ees who contribute to achieving the agency’s performance goals. The 

33 system of incentives shall include provisions that— 

34 (A) relate pay to performance (including the extent to which the 

35 performance of personnel in the workforce contributes to achieving 

36 the cost goals, schedule goals, and performance goals established 

37 for acquisition programs pursuant to section 3103(b) of this title); 

38 and 

39 (B) provide for consideration, in personnel evaluations and pro40 motion decisions, of the extent to which the performance of perVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
35 

HR 1107 RH 

1 sonnel in the workforce contributes to achieving the cost goals, 

2 schedule goals, and performance goals. 

3 (g) QUALIFICATION REQUIREMENTS.— 

4 (1) IN GENERAL.—Subject to paragraph (2), the Administrator 

5 shall— 

6 (A) establish qualification requirements, including education re7 quirements, for— 

8 (i) entry-level positions in the General Schedule Con9 tracting series (GS–1102); 

10 (ii) senior positions in the General Schedule Contracting 

11 series (GS–1102); 

12 (iii) all positions in the General Schedule Purchasing series 

13 (GS–1105); and 

14 (iv) positions in other General Schedule series in which sig15 nificant acquisition-related functions are performed; and 

16 (B) prescribe the manner and extent to which the qualification 

17 requirements shall apply to an individual serving in a position de18 scribed in subparagraph (A) at the time the requirements are es19 tablished. 

20 (2) RELATIONSHIP TO REQUIREMENTS APPLICABLE TO DEFENSE AC21 QUISITION WORKFORCE.—The Administrator shall establish qualifica22 tion requirements and make prescriptions under paragraph (1) that are 

23 comparable to those established for the same or equivalent positions 

24 pursuant to chapter 87 of title 10 with appropriate modifications. 

25 (3) APPROVAL OF REQUIREMENTS.—The Administrator shall submit 

26 any requirement established or prescription made under paragraph (1) 

27 to the Director of the Office of Personnel Management for approval. 

28 The Director is deemed to have approved the requirement or prescrip29 tion if the Director does not disapprove the requirement or prescription 

30 within 30 days after receiving it. 

31 (h) EDUCATION AND TRAINING.— 

32 (1) FUNDING LEVELS.—The head of an executive agency shall set 

33 forth separately the funding levels requested for educating and training 

34 the acquisition workforce in the budget justification documents sub35 mitted in support of the President’s budget submitted to Congress 

36 under section 1105 of title 31. 

37 (2) TUITION ASSISTANCE.—The head of an executive agency may 

38 provide tuition reimbursement in education (including a full-time 

39 course of study leading to a degree) in accordance with section 4107 

40 of title 5 for personnel serving in acquisition positions in the agency. 


hsrobinson on PROD1PC76 with BILLS
36 

HR 1107 RH 

1 (3) RESTRICTED OBLIGATION.—Amounts appropriated for education 

2 and training under this section may not be obligated for another pur3 pose. 

4 (i) TRAINING FUND.— 

5 (1) PURPOSES.—The purposes of this subsection are to ensure that 

6 the Federal acquisition workforce— 

7 (A) adapts to fundamental changes in the nature of Federal 

8 Government acquisition of property and services associated with 

9 the changing roles of the Federal Government; and 

10 (B) acquires new skills and a new perspective to enable it to 

11 contribute effectively in the changing environment of the 21st cen12 tury. 

13 (2) ESTABLISHMENT AND MANAGEMENT OF FUND.—There is an ac14 quisition workforce training fund. The Administrator of General Serv15 ices shall manage the fund through the Federal Acquisition Institute 

16 to support the training of the acquisition workforce of the executive 

17 agencies, except as provided in paragraph (5). The Administrator of 

18 General Services shall consult with the Administrator in managing the 

19 fund. 

20 (3) CREDITS TO FUND.—Five percent of the fees collected by execu21 tive agencies (other than the Department of Defense) under the fol22 lowing contracts shall be credited to the fund: 

23 (A) Government-wide task and delivery-order contracts entered 

24 into under sections 4103 and 4105 of this title. 

25 (B) Government-wide contracts for the acquisition of informa26 tion technology as defined in section 11101 of title 40 and multi27 agency acquisition contracts for that technology authorized by sec28 tion 11314 of title 40. 

29 (C) multiple-award schedule contracts entered into by the Ad30 ministrator of General Services. 

31 (4) REMITTANCE BY HEAD OF EXECUTIVE AGENCY.—The head of an 

32 executive agency that administers a contract described in paragraph (3) 

33 shall remit to the General Services Administration the amount required 

34 to be credited to the fund with respect to the contract at the end of 

35 each quarter of the fiscal year. 

36 (5) TRANSFER AND USE OF FEES COLLECTED FROM DEPARTMENT

37 OF DEFENSE.—The Administrator of General Services shall transfer to 

38 the Secretary of Defense fees collected from the Department of Defense 

39 pursuant to paragraph (3). The Defense Acquisition University shall 

40 use the fees for acquisition workforce training. 


hsrobinson on PROD1PC76 with BILLS
37 

HR 1107 RH 

1 (6) AMOUNTS NOT TO BE USED FOR OTHER PURPOSES.—The Ad2 ministrator of General Services, through the Office of Federal 

3 Procurememt Policy, shall ensure that amounts collected for training 

4 under this subsection are not used for a purpose other than the pur5 pose specified in paragraph (2). 

6 (7) AMOUNTS ARE IN ADDITION TO OTHER AMOUNTS FOR EDU7 CATION AND TRAINING.—Amounts credited to the fund are in addition 

8 to amounts requested and appropriated for education and training re9 ferred to in subsection (h)(1). 

10 (8) AVAILABILITY OF AMOUNTS.—Amounts credited to the fund re11 main available to be expended only in the fiscal year for which they 

12 are credited and the 2 succeeding fiscal years. 

13 (j) RECRUITMENT PROGRAM.— 

14 (1) SHORTAGE CATEGORY POSITIONS.—For purposes of sections 

15 3304, 5333, and 5753 of title 5, the head of a department or agency 

16 of the Federal Government (other than the Secretary of Defense) may 

17 determine, under regulations prescribed by the Office of Personnel 

18 Management, that certain Federal acquisition positions (as described in 

19 subsection (g)(1)(A)) are shortage category positions in order to use 

20 the authorities in those sections to recruit and appoint highly qualified 

21 individuals directly to those positions in the department or agency. 

22 (2) TERMINATION OF AUTHORITY.—The head of a department or 

23 agency may not appoint an individual to a position of employment 

24 under this subsection after September 30, 2012. 

25 (k) REEMPLOYMENT WITHOUT LOSS OF ANNUITY.— 

26 (1) ESTABLISHMENT OF POLICIES AND PROCEDURES.—The head of 

27 each executive agency, after consultation with the Administrator and 

28 the Director of the Office of Personnel Management, shall establish 

29 policies and procedures under which the agency head may reemploy in 

30 an acquisition-related position (as described in subsection (g)(1)(A)) an 

31 individual receiving an annuity from the Civil Service Retirement and 

32 Disability Fund, on the basis of the individual’s service, without dis33 continuing the annuity. The head of each executive agency shall keep 

34 the Administrator informed of the agency’s use of this authority. 

35 (2) CRITERIA FOR CONTINUATION OF ANNUITY.—Policies and proce36 dures established under paragraph (1) shall authorize the head of the 

37 executive agency, on a case-by-case basis, to continue an annuity if any 

38 of the following makes the reemployment of an individual essential: 

39 (A) The unusually high or unique qualifications of an individual 

40 receiving an annuity from the Civil Service Retirement and Dis41 ability Fund on the basis of the individual’s service. 


hsrobinson on PROD1PC76 with BILLS
38 

HR 1107 RH 

1 (B) The exceptional difficulty in recruiting or retaining a quali2 fied employee. 

3 (C) A temporary emergency hiring need. 

4 (3) SERVICE NOT SUBJECT TO CSRS OR FERS.—An individual reem5 ployed under this subsection shall not be deemed an employee for pur6 poses of chapter 83 or 84 of title 5. 

7 (4) REPORTING REQUIREMENT.—The Administrator shall submit an8 nually to the Committee on Oversight and Government Reform of the 

9 House of Representatives and the Committee on Homeland Security 

10 and Governmental Affairs of the Senate a report on the use of the au11 thority under this subsection, including the number of employees reem12 ployed under authority of this subsection. 

13 (5) SUNSET PROVISION.—The authority under this subsection ex14 pires on December 31, 2011. 

15 § 1704. Planning and policy-making for acquisition work16 force 

17 (a) DEFINITIONS.—In this section: 

18 (1) ASSOCIATE ADMINISTRATOR.—The term ‘‘Associate Adminis19 trator’’ means the Associate Administrator for Acquisition Workforce 

20 Programs as designated by the Administrator pursuant to subsection 

21 (b). 

22 (2) CHIEF ACQUISITION OFFICER.—The term ‘‘Chief Acquisition Of23 ficer’’ means a Chief Acquisition Officer for an executive agency ap24 pointed pursuant to section 1702 of this title. 

25 (b) ASSOCIATE ADMINISTRATOR FOR ACQUISITION WORKFORCE PRO26 GRAMS.—The Administrator shall designate a member of the Senior Execu27 tive Service as the Associate Administrator for Acquisition Workforce Pro28 grams. The Associate Administrator shall be located in the Federal Acquisi29 tion Institute (or its successor). The Associate Administrator shall be re30 sponsible for— 

31 (1) supervising the acquisition workforce training fund established 

32 under section 1703(i) of this title; 

33 (2) developing, in coordination with Chief Acquisition Officers and 

34 Chief Human Capital Officers, a strategic human capital plan for the 

35 acquisition workforce of the Federal Government; 

36 (3) reviewing and providing input to individual agency acquisition 

37 workforce succession plans; 

38 (4) recommending to the Administrator and other senior government 

39 officials appropriate programs, policies, and practices to increase the 

40 quantity and quality of the Federal acquisition workforce; and 

41 (5) carrying out other functions that the Administrator may assign. 


hsrobinson on PROD1PC76 with BILLS
39 

HR 1107 RH 

1 (c) ACQUISITION AND CONTRACTING TRAINING PROGRAMS WITHIN EX2 ECUTIVE AGENCIES.— 

3 (1) CHIEF ACQUISITION OFFICER AUTHORITIES AND RESPONSIBIL4 ITIES.—Subject to the authority, direction, and control of the head of 

5 an executive agency, the Chief Acquisition Officer for that agency shall 

6 carry out all powers, functions, and duties of the head of the agency 

7 with respect to implementation of this subsection. The Chief Acquisi8 tion Officer shall ensure that the policies established by the head of the 

9 agency in accordance with this subsection are implemented throughout 

10 the agency. 

11 (2) REQUIREMENT.—The head of each executive agency, after con12 sultation with the Associate Administrator, shall establish and operate 

13 acquisition and contracting training programs. The programs shall— 

14 (A) have curricula covering a broad range of acquisition and 

15 contracting disciplines corresponding to the specific acquisition 

16 and contracting needs of the agency involved; 

17 (B) be developed and applied according to rigorous standards; 

18 and 

19 (C) be designed to maximize efficiency, through the use of self20 paced courses, online courses, on-the-job training, and the use of 

21 remote instructors, wherever those features can be applied without 

22 reducing the effectiveness of the training or negatively affecting 

23 academic standards. 

24 (d) GOVERNMENT-WIDE POLICIES AND EVALUATION.—The Adminis25 trator shall issue policies to promote the development of performance stand26 ards for training and uniform implementation of this section by executive 

27 agencies, with due regard for differences in program requirements among 

28 agencies that may be appropriate and warranted in view of the agency mis29 sion. The Administrator shall evaluate the implementation of the provisions 

30 of subsection (c) by executive agencies. 

31 (e) INFORMATION ON ACQUISITION AND CONTRACTING TRAINING.—The 

32 Administrator shall ensure that the heads of executive agencies collect and 

33 maintain standardized information on the acquisition and contracting work34 force related to the implementation of subsection (c). 

35 (f) ACQUISITION WORKFORCE HUMAN CAPITAL SUCCESSION PLAN.— 

36 (1) IN GENERAL.—Each Chief Acquisition Officer for an executive 

37 agency shall develop, in consultation with the Chief Human Capital Of38 ficer for the agency and the Associate Administrator, a succession plan 

39 consistent with the agency’s strategic human capital plan for the re40 cruitment, development, and retention of the agency’s acquisition workVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
40 

HR 1107 RH 

1 force, with a particular focus on warranted contracting officers and 

2 program managers of the agency. 

3 (2) CONTENT OF PLAN.—The acquisition workforce succession plan 

4 shall address— 

5 (A) recruitment goals for personnel from procurement intern 

6 programs; 

7 (B) the agency’s acquisition workforce training needs; 

8 (C) actions to retain high performing acquisition professionals 

9 who possess critical relevant skills; 

10 (D) recruitment goals for personnel from the Federal Career In11 tern Program; and 

12 (E) recruitment goals for personnel from the Presidential Man13 agement Fellows Program. 

14 (g) ACQUISITION WORKFORCE DEVELOPMENT STRATEGIC PLAN.— 

15 (1) PURPOSE.—The purpose of this subsection is to authorize the 

16 preparation and completion of the Acquisition Workforce Development 

17 Strategic Plan, which is a plan for Federal agencies other than the De18 partment of Defense to— 

19 (A) develop a specific and actionable 5-year plan to increase the 

20 size of the acquisition workforce; and 

21 (B) operate a government-wide acquisition intern program for 

22 the Federal agencies. 

23 (2) ESTABLISHMENT OF PLAN.—The Associate Administrator shall 

24 be responsible for the management, oversight, and administration of 

25 the Acquisition Workforce Development Strategic Plan in cooperation 

26 and consultation with the Office of Federal Procurement Policy and 

27 with the assistance of the Federal Acquisition Institute. 

28 (3) CRITERIA.—The Acquisition Workforce Development Strategic 

29 Plan shall include an examination of the following matters: 

30 (A) The variety and complexity of acquisitions conducted by 

31 each Federal agency covered by the plan, and the workforce need32 ed to effectively carry out the acquisitions. 

33 (B) The development of a sustainable funding model to support 

34 efforts to hire, retain, and train an acquisition workforce of appro35 priate size and skill to effectively carry out the acquisition pro36 grams of the Federal agencies covered by the plan, including an 

37 examination of interagency funding methods and a discussion of 

38 how the model of the Defense Acquisition Workforce Development 

39 Fund could be applied to civilian agencies. 


hsrobinson on PROD1PC76 with BILLS
41 

HR 1107 RH 

1 (C) Any strategic human capital planning necessary to hire, re2 tain, and train an acquisition workforce of appropriate size and 

3 skill at each Federal agency covered by the plan. 

4 (D) Methodologies that Federal agencies covered by the plan 

5 can use to project future acquisition workforce personnel hiring re6 quirements, including an appropriate distribution of such per7 sonnel across each category of positions designated as acquisition 

8 workforce personnel under section 1703(g) of this title. 

9 (E) Government-wide training standards and certification re10 quirements necessary to enhance the mobility and career opportu11 nities of the Federal acquisition workforce within the Federal 

12 agencies covered by the plan. 

13 (F) If the Associate Administrator recommends as part of the 

14 plan a growth in the acquisition workforce of the Federal agencies 

15 covered by the plan below 25 percent over the next 5 years, an 

16 examination of each of the matters specified in subparagraphs (A) 

17 to (E) in the context of a 5-year plan that increases the size of 

18 such acquisition workforce by not less than 25 percent, or an ex19 planation why such a level of growth would not be in the best in20 terest of the Federal Government. 

21 (4) DEADLINE FOR COMPLETION.—The Acquisition Workforce De22 velopment Strategic Plan shall be completed not later than one year 

23 after October 14, 2008, and in a fashion that allows for immediate im24 plementation of its recommendations and guidelines. 

25 (5) FUNDS.—The acquisition workforce development strategic plan 

26 shall be funded from the acquisition workforce training fund under sec27 tion 1703(i) of this title. 

28 (h) TRAINING IN THE ACQUISITION OF ARCHITECT AND ENGINEERING

29 SERVICES.—The Administrator shall ensure that a sufficient number of 

30 Federal employees are trained in the acquisition of architect and engineer31 ing services. 

32 (i) UTILIZATION OF RECRUITMENT AND RETENTION AUTHORITIES.—The 

33 Administrator, in coordination with the Director of the Office of Personnel 

34 Management, shall encourage executive agencies to use existing authorities, 

35 including direct hire authority and tuition assistance programs, to recruit 

36 and retain acquisition personnel and consider recruiting acquisition per37 sonnel who may be retiring from the private sector, consistent with existing 

38 laws and regulations. 

39 § 1705. Advocates for competition 

40 (a) ESTABLISHMENT AND DESIGNATION.— 


hsrobinson on PROD1PC76 with BILLS
42 

HR 1107 RH 

1 (1) ESTABLISHMENT.—Each executive agency has an advocate for 

2 competition. 

3 (2) DESIGNATION.—The head of each executive agency shall— 

4 (A) designate for the executive agency and for each procuring 

5 activity of the executive agency one officer or employee serving in 

6 a position authorized for the executive agency on July 18, 1984 

7 (other than the senior procurement executive designated pursuant 

8 to section 1702(c) of this title) to serve as the advocate for com9 petition; 

10 (B) not assign those officers or employees duties or responsibil11 ities that are inconsistent with the duties and responsibilities of 

12 the advocates for competition; and 

13 (C) provide those officers or employees with the staff or assist14 ance necessary to carry out the duties and responsibilities of the 

15 advocate for competition, such as individuals who are specialists 

16 in engineering, technical operations, contract administration, fi17 nancial management, supply management, and utilization of small 

18 and disadvantaged business concerns. 

19 (b) DUTIES AND FUNCTIONS.—The advocate for competition of an execu20 tive agency shall— 

21 (1) be responsible for challenging barriers to, and promoting full and 

22 open competition in, the procurement of property and services by the 

23 executive agency; 

24 (2) review the procurement activities of the executive agency; 

25 (3) identify and report to the senior procurement executive of the ex26 ecutive agency— 

27 (A) opportunities and actions taken to achieve full and open 

28 competition in the procurement activities of the executive agency; 

29 and 

30 (B) any condition or action which has the effect of unnecessarily 

31 restricting competition in the procurement actions of the executive 

32 agency; 

33 (4) prepare and transmit to the senior procurement executive an an34 nual report describing— 

35 (A) the advocate’s activities under this section; 

36 (B) new initiatives required to increase competition; and 

37 (C) remaining barriers to full and open competition; 

38 (5) recommend to the senior procurement executive— 

39 (A) goals and the plans for increasing competition on a fiscal 

40 year basis; and 


hsrobinson on PROD1PC76 with BILLS
43 

HR 1107 RH 

1 (B) a system of personal and organizational accountability for 

2 competition, which may include the use of recognition and awards 

3 to motivate program managers, contracting officers, and others in 

4 authority to promote competition in procurement programs; and 

5 (6) describe other ways in which the executive agency has empha6 sized competition in programs for procurement training and research. 

7 (c) RESPONSIBILITIES.—The advocate for competition for each procuring 

8 activity is responsible for promoting full and open competition, promoting 

9 the acquisition of commercial items, and challenging barriers to acquisition, 

10 including unnecessarily restrictive statements of need, unnecessarily detailed 

11 specifications, and unnecessarily burdensome contract clauses. 

12 § 1706. Personnel evaluation 

13 The head of each executive agency subject to division C shall ensure, with 

14 respect to the employees of that agency whose primary duties and respon15 sibilities pertain to the award of contracts subject to the provisions of the 

16 Small Business and Federal Procurement Competition Enhancement Act of 

17 1984 (Public Law 98–577, 98 Stat. 3066), that the performance appraisal 

18 system applicable to those employees affords appropriate recognition to, 

19 among other factors, efforts to— 

20 (1) increase competition and achieve cost savings through the elimi21 nation of procedures that unnecessarily inhibit full and open competi22 tion; 

23 (2) further the purposes of the Small Business and Federal Procure24 ment Competition Enhancement Act of 1984 (Public Law 98–577, 98 

25 Stat. 3066) and the Defense Procurement Reform Act of 1984 (Public 

26 Law 98–525, title XII, 98 Stat. 2588); and 

27 (3) further other objectives and purposes of the Federal acquisition 

28 system authorized by law. 

29 § 1707. Publication of proposed regulations 

30 (a) COVERED POLICIES, REGULATIONS, PROCEDURES, AND FORMS.— 

31 (1) REQUIRED COMMENT PERIOD.—Except as provided in subsection 

32 (d), a procurement policy, regulation, procedure, or form (including an 

33 amendment or modification thereto) may not take effect until 60 days 

34 after it is published for public comment in the Federal Register pursu35 ant to subsection (b) if it— 

36 (A) relates to the expenditure of appropriated funds; and 

37 (B)(i) has a significant effect beyond the internal operating pro38 cedures of the agency issuing the policy, regulation, procedure, or 

39 form; or 

40 (ii) has a significant cost or administrative impact on contrac41 tors or offerors. 


hsrobinson on PROD1PC76 with BILLS
44 

HR 1107 RH 

1 (2) EXCEPTION.—A policy, regulation, procedure, or form may take 

2 effect earlier than 60 days after the publication date when there are 

3 compelling circumstances for the earlier effective date, but the effective 

4 date may not be less than 30 days after the publication date. 

5 (b) PUBLICATION IN FEDERAL REGISTER AND COMMENT PERIOD.—Sub6 ject to subsection (c), the head of the agency shall have published in the 

7 Federal Register a notice of the proposed procurement policy, regulation, 

8 procedure, or form and provide for a public comment period for receiving 

9 and considering the views of all interested parties on the proposal. The 

10 length of the comment period may not be less than 30 days. 

11 (c) CONTENTS OF NOTICE.—Notice of a proposed procurement policy, 

12 regulation, procedure, or form prepared for publication in the Federal Reg13 ister shall include— 

14 (1) the text of the proposal or, if it is impracticable to publish the 

15 full text of the proposal, a summary of the proposal and a statement 

16 specifying the name, address, and telephone number of the officer or 

17 employee of the executive agency from whom the full text may be ob18 tained; and 

19 (2) a request for interested parties to submit comments on the pro20 posal and the name and address of the officer or employee of the Fed21 eral Government designated to receive the comments. 

22 (d) WAIVER.—The requirements of subsections (a) and (b) may be waived 

23 by the officer authorized to issue a procurement policy, regulation, proce24 dure, or form if urgent and compelling circumstances make compliance with 

25 the requirements impracticable. 

26 (e) EFFECTIVENESS OF POLICY, REGULATION, PROCEDURE, OR FORM.— 

27 (1) TEMPORARY BASIS.—A procurement policy, regulation, proce28 dure, or form for which the requirements of subsections (a) and (b) 

29 are waived under subsection (d) is effective on a temporary basis if— 

30 (A) a notice of the policy, regulation, procedure, or form is pub31 lished in the Federal Register and includes a statement that the 

32 policy, regulation, procedure, or form is temporary; and 

33 (B) provision is made for a public comment period of 30 days 

34 beginning on the date on which the notice is published. 

35 (2) FINAL POLICY, REGULATION, PROCEDURE, OR FORM.—After con36 sidering the comments received, the head of the agency waiving the re37 quirements of subsections (a) and (b) under subsection (d) may issue 

38 the final procurement policy, regulation, procedure, or form. 

39 § 1708. Procurement notice 

40 (a) NOTICE REQUIREMENT.—Except as provided in subsection (b)— 


hsrobinson on PROD1PC76 with BILLS
45 

HR 1107 RH 

1 (1) an executive agency intending to solicit bids or proposals for a 

2 contract for property or services for a price expected to exceed 

3 $10,000, but not to exceed $25,000, shall post, for not less than 10 

4 days, in a public place at the contracting office issuing the solicitation 

5 a notice of solicitation described in subsection (c); 

6 (2) an executive agency shall publish a notice of solicitation described 

7 in subsection (c) if the agency intends to— 

8 (A) solicit bids or proposals for a contract for property or serv9 ices for a price expected to exceed $25,000; or 

10 (B) place an order, expected to exceed $25,000, under a basic 

11 agreement, basic ordering agreement, or similar arrangement; and 

12 (3) an executive agency awarding a contract for property or services 

13 for a price exceeding $25,000, or placing an order exceeding $25,000 

14 under a basic agreement, basic ordering agreement, or similar arrange15 ment, shall furnish for publication a notice announcing the award or 

16 order if there is likely to be a subcontract under the contract or order. 

17 (b) EXEMPTIONS.— 

18 (1) IN GENERAL.—A notice is not required under subsection (a) if— 

19 (A) the proposed procurement is for an amount not greater 

20 than the simplified acquisition threshold and is to be conducted 

21 by— 

22 (i) using widespread electronic public notice of the solicita23 tion in a form that allows convenient and universal user ac24 cess through a single, Government-wide point of entry; and 

25 (ii) permitting the public to respond to the solicitation elec26 tronically; 

27 (B) the notice would disclose the executive agency’s needs and 

28 disclosure would compromise national security; 

29 (C) the proposed procurement would result from acceptance 

30 of— 

31 (i) an unsolicited proposal that demonstrates a unique and 

32 innovative research concept and publication of a notice of the 

33 unsolicited research proposal would disclose the originality of 

34 thought or innovativeness of the proposal or would disclose 

35 proprietary information associated with the proposal; or 

36 (ii) a proposal submitted under section 9 of the Small 

37 Business Act (15 U.S.C. 638); 

38 (D) the procurement is made against an order placed under a 

39 requirements contract, a task order contract, or a delivery order 

40 contract; 

41 (E) the procurement is made for perishable subsistence supplies; 


hsrobinson on PROD1PC76 with BILLS
46 

HR 1107 RH 

1 (F) the procurement is for utility services, other than tele2 communication services, and only one source is available; or 

3 (G) the procurement is for the services of an expert for use in 

4 any litigation or dispute (including any reasonably foreseeable liti5 gation or dispute) involving the Federal Government in a trial, 

6 hearing, or proceeding before a court, administrative tribunal, or 

7 agency, or in any part of an alternative dispute resolution process, 

8 whether or not the expert is expected to testify. 

9 (2) CERTAIN PROCUREMENTS.—The requirements of subsection 

10 (a)(2) do not apply to a procurement— 

11 (A) under conditions described in paragraph (2), (3), (4), (5), 

12 or (7) of section 3304(a) of this title or paragraph (2), (3), (4), 

13 (5), or (7) of section 2304(c) of title 10; or 

14 (B) for which the head of the executive agency makes a deter15 mination in writing, after consultation with the Administrator and 

16 the Administrator of the Small Business Administration, that it is 

17 not appropriate or reasonable to publish a notice before issuing a 

18 solicitation. 

19 (3) IMPLEMENTATION CONSISTENT WITH INTERNATIONAL AGREE20 MENTS.—Paragraph (1)(A) shall be implemented in a manner con21 sistent with applicable international agreements. 

22 (c) CONTENTS OF NOTICE.—Each notice of solicitation required by para23 graph (1) or (2) of subsection (a) shall include— 

24 (1) an accurate description of the property or services to be con25 tracted for, which description— 

26 (A) shall not be unnecessarily restrictive of competition; and 

27 (B) shall include, as appropriate, the agency nomenclature, Na28 tional Stock Number or other part number, and a brief description 

29 of the item’s form, fit, or function, physical dimensions, predomi30 nant material of manufacture, or similar information that will as31 sist a prospective contractor to make an informed business judg32 ment as to whether a copy of the solicitation should be requested; 

33 (2) provisions that— 

34 (A)(i) state whether the technical data required to respond to 

35 the solicitation will not be furnished as part of the solicitation; and 

36 (ii) identify the source in the Federal Government, if any, from 

37 which the technical data may be obtained; and 

38 (B)(i) state whether an offeror or its product or service must 

39 meet a qualification requirement in order to be eligible for award; 

40 and 


hsrobinson on PROD1PC76 with BILLS
47 

HR 1107 RH 

1 (ii) if so, identify the office from which the qualification require2 ment may be obtained; 

3 (3) the name, business address, and telephone number of the con4 tracting officer; 

5 (4) a statement that all responsible sources may submit a bid, pro6 posal, or quotation (as appropriate) that the agency shall consider; 

7 (5) in the case of a procurement using procedures other than com8 petitive procedures, a statement of the reason justifying the use of 

9 those procedures and the identity of the intended source; and 

10 (6) in the case of a contract in an amount estimated to be greater 

11 than $25,000 but not greater than the simplified acquisition threshold, 

12 or a contract for the procurement of commercial items using special 

13 simplified procedures— 

14 (A) a description of the procedures to be used in awarding the 

15 contract; and 

16 (B) a statement specifying the periods for prospective offerors 

17 and the contracting officer to take the necessary preaward and 

18 award actions. 

19 (d) ELECTRONIC PUBLICATION OF NOTICE OF SOLICITATION, AWARD, OR

20 ORDER.—A notice of solicitation, award, or order required to be published 

21 under subsection (a) shall be published by electronic means. The notice 

22 must be electronically accessible in a form that allows convenient and uni23 versal user access through the single Government-wide point of entry des24 ignated in the Federal Acquisition Regulation. 

25 (e) TIME LIMITATIONS.— 

26 (1) ISSUING NOTICE OF SOLICITATION AND ESTABLISHING DEAD27 LINE FOR SUBMITTING BIDS AND PROPOSALS.—An executive agency re28 quired by subsection (a)(2) to publish a notice of solicitation may not— 

29 (A) issue the solicitation earlier than 15 days after the date on 

30 which the notice is published; or 

31 (B) in the case of a contract or order expected to be greater 

32 than the simplified acquisition threshold, establish a deadline for 

33 the submission of all bids or proposals in response to the notice 

34 required by subsection (a)(2) that— 

35 (i) in the case of a solicitation for research and develop36 ment, is earlier than 45 days after the date the notice re37 quired for a bid or proposal for a contract described in sub38 section (a)(2)(A) is published; 

39 (ii) in the case of an order under a basic agreement, basic 

40 ordering agreement, or similar arrangement, is earlier than 


hsrobinson on PROD1PC76 with BILLS
48 

HR 1107 RH 

1 30 days after the date the notice required for an order de2 scribed in subsection (a)(2)(B) is published; or 

3 (iii) in any other case, is earlier than 30 days after the 

4 date the solicitation is issued. 

5 (2) ESTABLISHING DEADLINE WHEN NONE PROVIDED BY STAT6 UTE.—An executive agency shall establish a deadline for the submis7 sion of all bids or proposals in response to a solicitation for which a 

8 deadline is not provided by statute. Each deadline for the submission 

9 of offers shall afford potential offerors a reasonable opportunity to re10 spond. 

11 (3) FLEXIBLE DEADLINES.—The Administrator shall prescribe regu12 lations defining limited circumstances in which flexible deadlines can be 

13 used under paragraph (1) for the issuance of solicitations and the sub14 mission of bids or proposals for the procurement of commercial items. 

15 (f) CONSIDERATION OF CERTAIN TIMELY RECEIVED OFFERS.—An exec16 utive agency intending to solicit offers for a contract for which a notice of 

17 solicitation is required to be posted under subsection (a)(1) shall ensure that 

18 contracting officers consider each responsive offer timely received from an 

19 offeror. 

20 (g) AVAILABILITY OF COMPLETE SOLICITATION PACKAGE AND PAYMENT

21 OF FEE.—An executive agency shall make available to a business concern, 

22 or the authorized representative of a concern, the complete solicitation pack23 age for any on-going procurement announced pursuant to a notice of solici24 tation under subsection (a). An executive agency may require the payment 

25 of a fee, not exceeding the actual cost of duplication, for a copy of the pack26 age. 

27 § 1709. Contracting functions performed by Federal per28 sonnel 

29 (a) COVERED PERSONNEL.—Personnel referred to in subsection (b) are— 

30 (1) an employee, as defined in section 2105 of title 5; 

31 (2) a member of the armed forces; and 

32 (3) an employee from State or local governments assigned to a Fed33 eral agency pursuant to subchapter VI of chapter 33 of title 5. 

34 (b) LIMITATION ON PAYMENT FOR ADVISORY AND ASSISTANCE SERV35 ICES.—No individual who is not an individual described in subsection (a) 

36 may be paid by an executive agency for services to conduct evaluations or 

37 analyses of any aspect of a proposal submitted for an acquisition unless per38 sonnel described in subsection (a) with adequate training and capabilities 

39 to perform the evaluations and analyses are not readily available in the 

40 agency or another Federal agency. When administering this subsection, the 


hsrobinson on PROD1PC76 with BILLS
49 

HR 1107 RH 

1 head of each executive agency shall determine in accordance with standards 

2 and procedures prescribed in the Federal Acquisition Regulation whether— 

3 (1) a sufficient number of personnel described in subsection (a) in 

4 the agency or another Federal agency are readily available to perform 

5 a particular evaluation or analysis for the head of the executive agency 

6 making the determination; and 

7 (2) the readily available personnel have the training and capabilities 

8 necessary to perform the evaluation or analysis. 

9 (c) CERTAIN RELATIONSHIP NOT AFFECTED.—This section does not af10 fect the relationship between the Federal Government and a Federally fund11 ed research and development center. 

12 § 1710. Public-private competition required before conver13 sion to contractor performance 

14 (a) PUBLIC-PRIVATE COMPETITION.— 

15 (1) WHEN CONVERSION TO CONTRACTOR PERFORMANCE IS AL16 LOWED.—A function of an executive agency performed by 10 or more 

17 agency civilian employees may not be converted, in whole or in part, 

18 to performance by a contractor unless the conversion is based on the 

19 results of a public-private competition that— 

20 (A) formally compares the cost of performance of the function 

21 by agency civilian employees with the cost of performance by a 

22 contractor; 

23 (B) creates an agency tender, including a most efficient organi24 zation plan, in accordance with Office of Management and Budget 

25 Circular A76, as implemented on May 29, 2003, or any successor 

26 circular; 

27 (C) includes the issuance of a solicitation; 

28 (D) determines whether the submitted offers meet the needs of 

29 the executive agency with respect to factors other than cost, in30 cluding quality, reliability, and timeliness; 

31 (E) examines the cost of performance of the function by agency 

32 civilian employees and the cost of performance of the function by 

33 one or more contractors to demonstrate whether converting to per34 formance by a contractor will result in savings to the Federal Gov35 ernment over the life of the contract, including— 

36 (i) the estimated cost to the Federal Government (based on 

37 offers received) for performance of the function by a con38 tractor; 

39 (ii) the estimated cost to the Federal Government for per40 formance of the function by agency civilian employees; and 


hsrobinson on PROD1PC76 with BILLS
50 

HR 1107 RH 

1 (iii) an estimate of all other costs and expenditures that the 

2 Federal Government would incur because of the award of the 

3 contract; 

4 (F) requires continued performance of the function by agency 

5 civilian employees unless the difference in the cost of performance 

6 of the function by a contractor compared to the cost of perform7 ance of the function by agency civilian employees would, over all 

8 performance periods required by the solicitation, be equal to or ex9 ceed the lesser of— 

10 (i) 10 percent of the personnel-related costs for perform11 ance of that function in the agency tender; or 

12 (ii) $10,000,000; and 

13 (G) examines the effect of performance of the function by a con14 tractor on the agency mission associated with the performance of 

15 the function. 

16 (2) NOT A NEW REQUIREMENT.—A function that is performed by 

17 the executive agency and is reengineered, reorganized, modernized, up18 graded, expanded, or changed to become more efficient, but still essen19 tially provides the same service, shall not be considered a new require20 ment. 

21 (3) PROHIBITIONS.—In no case may a function being performed by 

22 executive agency personnel be— 

23 (A) modified, reorganized, divided, or in any way changed for 

24 the purpose of exempting the conversion of the function from the 

25 requirements of this section; or 

26 (B) converted to performance by a contractor to circumvent a 

27 civilian personnel ceiling. 

28 (b) CONSULTING WITH AFFECTED EMPLOYEES OR THEIR REPRESENTA29 TIVES.— 

30 (1) CONSULTING WITH AFFECTED EMPLOYEES.—Each civilian em31 ployee of an executive agency responsible for determining under Office 

32 of Management and Budget Circular A76 whether to convert to con33 tractor performance any function of the executive agency— 

34 (A) shall, at least monthly during the development and prepara35 tion of the performance work statement and the management effi36 ciency study used in making that determination, consult with civil37 ian employees who will be affected by that determination and con38 sider the views of the employees on the development and prepara39 tion of that statement and that study; and 

40 (B) may consult with the employees on other matters relating 

41 to that determination. 


hsrobinson on PROD1PC76 with BILLS
51 

HR 1107 RH 

1 (2) CONSULTING WITH REPRESENTATIVES.— 

2 (A) EMPLOYEES REPRESENTED BY A LABOR ORGANIZATION.— 

3 In the case of employees represented by a labor organization ac4 corded exclusive recognition under section 7111 of title 5, con5 sultation with representatives of that labor organization shall sat6 isfy the consultation requirement in paragraph (1). 

7 (B) EMPLOYEES NOT REPRESENTED BY A LABOR ORGANIZA8 TION.—In the case of employees other than employees referred to 

9 in subparagraph (A), consultation with appropriate representatives 

10 of those employees shall satisfy the consultation requirement in 

11 paragraph (1). 

12 (3) REGULATIONS.—The head of each executive agency shall pre13 scribe regulations to carry out this subsection. The regulations shall in14 clude provisions for the selection or designation of appropriate rep15 resentatives of employees referred to in paragraph (2)(B) for purposes 

16 of consultation required by paragraph (1). 

17 (c) CONGRESSIONAL NOTIFICATION.— 

18 (1) REPORT.—Before commencing a public-private competition 

19 under subsection (a), the head of an executive agency shall submit to 

20 Congress a report containing the following: 

21 (A) The function for which the public-private competition is to 

22 be conducted. 

23 (B) The location at which the function is performed by agency 

24 civilian employees. 

25 (C) The number of agency civilian employee positions potentially 

26 affected. 

27 (D) The anticipated length and cost of the public-private com28 petition, and a specific identification of the budgetary line item 

29 from which funds will be used to cover the cost of the public-pri30 vate competition. 

31 (E) A certification that a proposed performance of the function 

32 by a contractor is not a result of a decision by an official of an 

33 executive agency to impose predetermined constraints or limita34 tions on agency civilian employees in terms of man years, end 

35 strengths, full-time equivalent positions, or maximum number of 

36 employees. 

37 (2) EXAMINATION OF POTENTIAL ECONOMIC EFFECT.—The report 

38 required under paragraph (1) shall include an examination of the po39 tential economic effect of performance of the function by a contractor 

40 on— 


hsrobinson on PROD1PC76 with BILLS
52 

HR 1107 RH 

1 (A) agency civilian employees who would be affected by such a 

2 conversion in performance; and 

3 (B) the local community and the Federal Government, if more 

4 than 50 agency civilian employees perform the function. 

5 (3) OBJECTIONS TO PUBLIC-PRIVATE COMPETITION.— 

6 (A) GROUNDS.—A representative individual or entity at a facil7 ity where a public-private competition is conducted may submit to 

8 the head of the executive agency an objection to the public-private 

9 competition on the grounds that— 

10 (i) the report required by paragraph (1) has not been sub11 mitted; or 

12 (ii) the certification required by paragraph (1)(E) was not 

13 included in the report required by paragraph (1). 

14 (B) DEADLINES.—The objection shall be in writing and shall be 

15 submitted within 90 days after the following date: 

16 (i) In the case of a failure to submit the report when re17 quired, the date on which the representative individual or an 

18 official of the representative entity authorized to pose the ob19 jection first knew or should have known of that failure. 

20 (ii) In the case of a failure to include the certification in 

21 a submitted report, the date on which the report was sub22 mitted to Congress. 

23 (C) REPORT AND CERTIFICATION REQUIRED BEFORE SOLICITA24 TION OR AWARD OF CONTRACT.—If the head of the executive 

25 agency determines that the report required by paragraph (1) was 

26 not submitted or that the required certification was not included 

27 in the submitted report, the function for which the public-private 

28 competition was conducted for which the objection was submitted 

29 may not be the subject of a solicitation of offers for, or award of, 

30 a contract until, respectively, the report is submitted or a report 

31 containing the certification in full compliance with the certification 

32 requirement is submitted. 

33 (d) EXEMPTION FOR THE PURCHASE OF PRODUCTS AND SERVICES OF

34 THE BLIND AND OTHER SEVERELY DISABLED PEOPLE.—This section shall 

35 not apply to a commercial or industrial type function of an executive agency 

36 that is— 

37 (1) included on the procurement list established pursuant to section 

38 8503 of this title; or 

39 (2) planned to be changed to performance by a qualified nonprofit 

40 agency for the blind or by a qualified nonprofit agency for other se41 verely disabled people in accordance with chapter 85 of this title. 


hsrobinson on PROD1PC76 with BILLS
53 

HR 1107 RH 

1 (e) INAPPLICABILITY DURING WAR OR EMERGENCY.—The provisions of 

2 this section shall not apply during war or during a period of national emer3 gency declared by the President or Congress. 

4 § 1711. Value engineering 

5 Each executive agency shall establish and maintain cost-effective proce6 dures and processes for analyzing the functions of a program, project, sys7 tem, product, item of equipment, building, facility, service, or supply of the 

8 agency. The analysis shall be— 

9 (1) performed by qualified agency or contractor personnel; and 

10 (2) directed at improving performance, reliability, quality, safety, 

11 and life cycle costs. 

12 § 1712. Record requirements 

13 (a) MAINTAINING RECORDS ON COMPUTER.—Each executive agency shall 

14 establish and maintain for 5 years a computer file, by fiscal year, containing 

15 unclassified records of all procurements greater than the simplified acquisi16 tion threshold in that fiscal year. 

17 (b) CONTENTS.—The record established under subsection (a) shall in18 clude, with respect to each procurement carried out using— 

19 (1) competitive procedures— 

20 (A) the date of contract award; 

21 (B) information identifying the source to whom the contract was 

22 awarded; 

23 (C) the property or services the Federal Government obtains 

24 under the procurement; and 

25 (D) the total cost of the procurement; or 

26 (2) procedures other than competitive procedures— 

27 (A) the information described in paragraph (1); 

28 (B) the reason under section 3304(a) of this title or section 

29 2304(c) of title 10 for using the procedures; and 

30 (C) the identity of the organization or activity that conducted 

31 the procurement. 

32 (c) SEPARATE RECORD CATEGORY FOR PROCUREMENTS RESULTING IN

33 ONE BID OR PROPOSAL.—Information included in a record pursuant to 

34 subsection (b)(1) that relates to procurements resulting in the submission 

35 of a bid or proposal by only one responsible source shall be separately cat36 egorized from the information relating to other procurements included in 

37 the record. The record of that information shall be designated ‘‘noncompeti38 tive procurements using competitive procedures’’. 

39 (d) TRANSMISSION AND DATA ENTRY OF INFORMATION.—The head of 

40 each executive agency shall— 


hsrobinson on PROD1PC76 with BILLS
54 

HR 1107 RH 

1 (1) ensure the accuracy of the information included in the record es2 tablished and maintained by the agency under subsection (a); and 

3 (2) transmit in a timely manner such information to the General 

4 Services Administration for entry into the Federal Procurement Data 

5 System referred to in section 1122(a)(4) of this title, or any successor 

6 system. 

7 § 1713. Procurement data 

8 (a) DEFINITIONS.—In this section: 

9 (1) QUALIFIED HUBZONE SMALL BUSINESS CONCERN.—The term 

10 ‘‘qualified HUBZone small business concern’’ has the meaning given 

11 that term in section 3(p) of the Small Business Act (15 U.S.C. 

12 632(p)). 

13 (2) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY SO14 CIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS.—The term 

15 ‘‘small business concern owned and controlled by socially and economi16 cally disadvantaged individuals’’ has the meaning given that term in 

17 section 8(d) of the Small Business Act (15 U.S.C. 637(d)). 

18 (3) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY

19 WOMEN.—The term ‘‘small business concern owned and controlled by 

20 women’’ has the meaning given that term in section 8(d) of the Small 

21 Business Act (15 U.S.C. 637(d)) and section 204 of the Women’s 

22 Business Ownership Act of 1988 (Public Law 100–533, 102 Stat. 

23 2692). 

24 (b) REPORTING.—Each Federal agency shall report to the Office of Fed25 eral Procurement Policy the number of qualified HUBZone small business 

26 concerns, the number of small businesses owned and controlled by women, 

27 and the number of small business concerns owned and controlled by socially 

28 and economically disadvantaged individuals, by gender, that are first time 

29 recipients of contracts from the agency. The Office shall take appropriate 

30 action to ascertain, for each fiscal year, the number of those small busi31 nesses that have newly entered the Federal market. 

32 CHAPTER 19—SIMPLIFIED ACQUISITION PROCEDURES 

Sec. 

1901. Simplified acquisition procedures. 

1902. Procedures applicable to purchases below micro-purchase threshold. 

1903. Special emergency procurement authority. 

1904. Certain transactions for defense against attack. 

1905. List of laws inapplicable to contracts or subcontracts not greater than simplified acquisition threshold. 

1906. List of laws inapplicable to procurements of commercial items. 

1907. List of laws inapplicable to procurements of commercially available off-the-shelf items. 

1908. Inflation adjustment of acquisition-related dollar thresholds. 

33 § 1901. Simplified acquisition procedures 

34 (a) WHEN PROCEDURES ARE TO BE USED.—To promote efficiency and 

35 economy in contracting and to avoid unnecessary burdens for agencies and 


hsrobinson on PROD1PC76 with BILLS
55 

HR 1107 RH 

1 contractors, the Federal Acquisition Regulation shall provide for special 

2 simplified procedures for purchases of property and services for amounts— 

3 (1) not greater than the simplified acquisition threshold; and 

4 (2) greater than the simplified acquisition threshold but not greater 

5 than $5,000,000 for which the contracting officer reasonably expects, 

6 based on the nature of the property or services sought and on market 

7 research, that offers will include only commercial items. 

8 (b) PROHIBITION ON DIVIDING PURCHASES.—A proposed purchase or 

9 contract for an amount above the simplified acquisition threshold may not 

10 be divided into several purchases or contracts for lesser amounts to use the 

11 simplified acquisition procedures required by subsection (a). 

12 (c) PROMOTION OF COMPETITION REQUIRED.—When using simplified ac13 quisition procedures, the head of an executive agency shall promote competi14 tion to the maximum extent practicable. 

15 (d) CONSIDERATION OF OFFERS TIMELY RECEIVED.—The simplified ac16 quisition procedures contained in the Federal Acquisition Regulation shall 

17 include a requirement that a contracting officer consider each responsive 

18 offer timely received from an eligible offeror. 

19 (e) SPECIAL RULES FOR COMMERCIAL ITEMS.—The Federal Acquisition 

20 Regulation shall provide that an executive agency using special simplified 

21 procedures to purchase commercial items— 

22 (1) shall publish a notice in accordance with section 1708 of this title 

23 and, as provided in section 1708(c)(4) of this title, permit all respon24 sible sources to submit a bid, proposal, or quotation (as appropriate) 

25 that the agency shall consider; 

26 (2) may not conduct the purchase on a sole source basis unless the 

27 need to do so is justified in writing and approved in accordance with 

28 section 2304(f) of title 10 or section 3304(e) of this title, as applicable; 

29 and 

30 (3) shall include in the contract file a written description of the pro31 cedures used in awarding the contract and the number of offers re32 ceived. 

33 § 1902. Procedures applicable to purchases below micro-pur34 chase threshold 

35 (a) DEFINITION.—For purposes of this section, the micro-purchase 

36 threshold is $2,500. 

37 (b) COMPLIANCE WITH CERTAIN REQUIREMENTS AND NONAPPLICA38 BILITY OF CERTAIN AUTHORITY.— 

39 (1) COMPLIANCE WITH CERTAIN REQUIREMENTS.—The head of each 

40 executive agency shall ensure that procuring activities of that agency, 

41 when awarding a contract with a price exceeding the micro-purchase 


hsrobinson on PROD1PC76 with BILLS
56 

HR 1107 RH 

1 threshold, comply with the requirements of section 8(a) of the Small 

2 Business Act (15 U.S.C. 637(a)), section 2323 of title 10, and section 

3 7102 of the Federal Acquisition Streamlining Act of 1994 (Public Law 

4 103–355, 15 U.S.C. 644 note). 

5 (2) NONAPPLICABILITY OF CERTAIN AUTHORITY.—The authority 

6 under part 13.106(a)(1) of the Federal Acquisition Regulation (48 

7 C.F.R. 13.106(a)(1)), as in effect on November 18, 1993, to make pur8 chases without securing competitive quotations does not apply to a pur9 chase with a price exceeding the micro-purchase threshold. 

10 (c) NONAPPLICABILITY OF CERTAIN PROVISIONS.—An executive agency 

11 purchase with an anticipated value of the micro-purchase threshold or less 

12 is not subject to section 15(j) of the Small Business Act (15 U.S.C. 644(j)) 

13 and chapter 83 of this title. 

14 (d) PURCHASES WITHOUT COMPETITIVE QUOTATIONS.—A purchase not 

15 greater than $2,500 may be made without obtaining competitive quotations 

16 if an employee of an executive agency or a member of the armed forces, 

17 authorized to do so, determines that the price for the purchase is reason18 able. 

19 (e) EQUITABLE DISTRIBUTION.—Purchases not greater than $2,500 shall 

20 be distributed equitably among qualified suppliers. 

21 (f) IMPLEMENTATION THROUGH FEDERAL ACQUISITION REGULATION.— 

22 This section shall be implemented through the Federal Acquisition Regula23 tion. 

24 § 1903. Special emergency procurement authority 

25 (a) APPLICABILITY.—The authorities provided in subsections (b) and (c) 

26 apply with respect to a procurement of property or services by or for an 

27 executive agency that the head of the executive agency determines are to 

28 be used— 

29 (1) in support of a contingency operation (as defined in section 

30 101(a) of title 10); or 

31 (2) to facilitate the defense against or recovery from nuclear, biologi32 cal, chemical, or radiological attack against the United States. 

33 (b) INCREASED THRESHOLDS AND LIMITATION.—For a procurement to 

34 which this section applies under subsection (a)— 

35 (1) the amount specified in section 1902(a), (d), and (e) of this title 

36 shall be deemed to be— 

37 (A) $15,000 in the case of a contract to be awarded and per38 formed, or purchase to be made, in the United States; and 

39 (B) $25,000 in the case of a contract to be awarded and per40 formed, or purchase to be made, outside the United States; 

41 (2) the term ‘‘simplified acquisition threshold’’ means— 


hsrobinson on PROD1PC76 with BILLS
57 

HR 1107 RH 

1 (A) $250,000 in the case of a contract to be awarded and per2 formed, or purchase to be made, in the United States; and 

3 (B) $1,000,000 in the case of a contract to be awarded and per4 formed, or purchase to be made, outside the United States; and 

5 (3) the $5,000,000 limitation in sections 1901(a)(2) and 3305(a)(2) 

6 of this title and section 2304(g)(1)(B) of title 10 is deemed to be 

7 $10,000,000. 

8 (c) AUTHORITY TO TREAT PROPERTY OR SERVICE AS COMMERCIAL

9 ITEM.— 

10 (1) IN GENERAL.—The head of an executive agency carrying out a 

11 procurement of property or a service to which this section applies under 

12 subsection (a)(2) may treat the property or service as a commercial 

13 item for the purpose of carrying out the procurement. 

14 (2) CERTAIN CONTRACTS NOT EXEMPT FROM STANDARDS OR RE15 QUIREMENTS.—A contract in an amount of more than $15,000,000 

16 that is awarded on a sole source basis for an item or service treated 

17 as a commercial item under paragraph (1) is not exempt from— 

18 (A) cost accounting standards prescribed under section 1502 of 

19 this title; or 

20 (B) cost or pricing data requirements (commonly referred to as 

21 truth in negotiating) under chapter 35 of this title and section 

22 2306a of title 10. 

23 § 1904. Certain transactions for defense against attack 

24 (a) AUTHORITY.— 

25 (1) IN GENERAL.—The head of an executive agency that engages in 

26 basic research, applied research, advanced research, and development 

27 projects that are necessary to the responsibilities of the executive agen28 cy in the field of research and development and have the potential to 

29 facilitate defense against or recovery from terrorism or nuclear, biologi30 cal, chemical, or radiological attack may exercise the same authority 

31 (subject to the same restrictions and conditions) with respect to the re32 search and projects as the Secretary of Defense may exercise under 

33 section 2371 of title 10, except for subsections (b) and (f) of section 

34 2371. 

35 (2) PROTOTYPE PROJECTS.—The head of an executive agency, under 

36 the authority of paragraph (1), may carry out prototype projects that 

37 meet the requirements of paragraph (1) in accordance with the require38 ments and conditions provided for carrying out prototype projects 

39 under section 845 of the National Defense Authorization Act for Fiscal 

40 Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note), including 

41 that, to the maximum extent practicable, competitive procedures shall 


hsrobinson on PROD1PC76 with BILLS
58 

HR 1107 RH 

1 be used when entering into agreements to carry out projects under sec2 tion 845(a) of that Act and that the period of authority to carry out 

3 projects under section 845(a) of that Act terminates as provided in sec4 tion 845(i) of that Act. 

5 (3) APPLICATION OF REQUIREMENTS AND CONDITIONS.—In applying 

6 the requirements and conditions of section 845 of that Act under this 

7 subsection— 

8 (A) section 845(c) of that Act shall apply with respect to proto9 type projects carried out under paragraph (2); and 

10 (B) the Director of the Office of Management and Budget shall 

11 perform the functions of the Secretary of Defense under section 

12 845(d) of that Act. 

13 (4) APPLICABILITY TO SELECTED EXECUTIVE AGENCIES.— 

14 (A) OFFICE OF MANAGEMENT AND BUDGET.—The head of an 

15 executive agency may exercise authority under this subsection for 

16 a project only if authorized by the Director of the Office of Man17 agement and Budget. 

18 (B) DEPARTMENT OF HOMELAND SECURITY.—Authority under 

19 this subsection does not apply to the Secretary of Homeland Secu20 rity while section 831 of the Homeland Security Act of 2002 (6 

21 U.S.C. 391) is in effect. 

22 (b) REGULATIONS.—The Director of the Office of Management and 

23 Budget shall prescribe regulations to carry out this section. No transaction 

24 may be conducted under the authority of this section before the regulations 

25 take effect. 

26 (c) ANNUAL REPORT.—The annual report of the head of an executive 

27 agency that is required under section 2371(h) of title 10, as applied to the 

28 head of the executive agency by subsection (a), shall be submitted to the 

29 Committee on Homeland Security and Governmental Affairs of the Senate 

30 and the Committee on Oversight and Government Reform of the House of 

31 Representatives. 

32 (d) TERMINATION OF AUTHORITY.—The authority to carry out trans33 actions under subsection (a) terminates on September 30, 2008. 

34 § 1905. List of laws inapplicable to contracts or subcontracts 

35 not greater than simplified acquisition threshold 

36 (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning 

37 given that term in section 1301 of this title. 

38 (b) INCLUSION IN FEDERAL ACQUISITION REGULATION.— 

39 (1) IN GENERAL.—The Federal Acquisition Regulation shall include 

40 a list of provisions of law that are inapplicable to contracts or sub41 contracts in amounts not greater than the simplified acquisition threshVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
59 

HR 1107 RH 

1 old. A provision of law properly included on the list pursuant to para2 graph (2) does not apply to contracts or subcontracts in amounts not 

3 greater than the simplified acquisition threshold that are made by an 

4 executive agency. This section does not render a provision of law not 

5 included on the list inapplicable to contracts and subcontracts in 

6 amounts not greater than the simplified acquisition threshold. 

7 (2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law 

8 described in subsection (c) that is enacted after October 13, 1994, shall 

9 be included on the list of inapplicable provisions of laws required by 

10 paragraph (1) unless the Council makes a written determination that 

11 it would not be in the best interest of the Federal Government to ex12 empt contracts or subcontracts in amounts not greater than the sim13 plified acquisition threshold from the applicability of the provision. 

14 (c) COVERED LAW.—A provision of law referred to in subsection (b)(2) 

15 is a provision of law that the Council determines sets forth policies, proce16 dures, requirements, or restrictions for the procurement of property or serv17 ices by the Federal Government, except for a provision of law that— 

18 (1) provides for criminal or civil penalties; or 

19 (2) specifically refers to this section and provides that, notwith20 standing this section, it shall be applicable to contracts or subcontracts 

21 in amounts not greater than the simplified acquisition threshold. 

22 (d) PETITION.—A person may petition the Administrator to take appro23 priate action when a provision of law described in subsection (c) is not in24 cluded on the list of inapplicable provisions of law as required by subsection 

25 (b) and the Council has not made a written determination pursuant to sub26 section (b)(2). The Administrator shall revise the Federal Acquisition Regu27 lation to include the provision on the list of inapplicable provisions of law 

28 unless the Council makes a determination pursuant to subsection (b)(2) 

29 within 60 days after the petition is received. 

30 § 1906. List of laws inapplicable to procurements of commer31 cial items 

32 (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning 

33 given that term in section 1301 of this title. 

34 (b) CONTRACTS.— 

35 (1) INCLUSION IN FEDERAL ACQUISITION REGULATION.—The Fed36 eral Acquisition Regulation shall include a list of provisions of law that 

37 are inapplicable to contracts for the procurement of commercial items. 

38 A provision of law properly included on the list pursuant to paragraph 

39 (2) does not apply to purchases of commercial items by an executive 

40 agency. This section does not render a provision of law not included 


hsrobinson on PROD1PC76 with BILLS
60 

HR 1107 RH 

1 on the list inapplicable to contracts for the procurement of commercial 

2 items. 

3 (2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law 

4 described in subsection (d) that is enacted after October 13, 1994, 

5 shall be included on the list of inapplicable provisions of law required 

6 by paragraph (1) unless the Council makes a written determination 

7 that it would not be in the best interest of the Federal Government 

8 to exempt contracts for the procurement of commercial items from the 

9 applicability of the provision. 

10 (c) SUBCONTRACTS.— 

11 (1) DEFINITION.—In this subsection, the term ‘‘subcontract’’ in12 cludes a transfer of commercial items between divisions, subsidiaries, 

13 or affiliates of a contractor or subcontractor. 

14 (2) INCLUSION IN FEDERAL ACQUISITION REGULATION.—The Fed15 eral Acquisition Regulation shall include a list of provisions of law that 

16 are inapplicable to subcontracts under a contract or subcontract for the 

17 procurement of commercial items. A provision of law properly included 

18 on the list pursuant to paragraph (3) does not apply to those sub19 contracts. This section does not render a provision of law not included 

20 on the list inapplicable to subcontracts under a contract for the pro21 curement of commercial items. 

22 (3) PROVISIONS TO BE EXCLUDED FROM LIST.—A provision of law 

23 described in subsection (d) shall be included on the list of inapplicable 

24 provisions of law required by paragraph (2) unless the Council makes 

25 a written determination that it would not be in the best interest of the 

26 Federal Government to exempt subcontracts under a contract for the 

27 procurement of commercial items from the applicability of the provi28 sion. 

29 (4) WAIVER NOT AUTHORIZED.—This subsection does not authorize 

30 the waiver of the applicability of any provision of law with respect to 

31 any subcontract under a contract with a prime contractor reselling or 

32 distributing commercial items of another contractor without adding 

33 value. 

34 (d) COVERED LAW.—A provision of law referred to in subsections (b)(2) 

35 and (c) is a provision of law that the Council determines sets forth policies, 

36 procedures, requirements, or restrictions for the procurement of property or 

37 services by the Federal Government, except for a provision of law that— 

38 (1) provides for criminal or civil penalties; or 

39 (2) specifically refers to this section and provides that, notwith40 standing this section, it shall be applicable to contracts for the procure41 ment of commercial items. 


hsrobinson on PROD1PC76 with BILLS
61 

HR 1107 RH 

1 (e) PETITION.—A person may petition the Administrator to take appro2 priate action when a provision of law described in subsection (d) is not in3 cluded on the list of inapplicable provisions of law as required by subsection 

4 (b) or (c) and the Council has not made a written determination pursuant 

5 to subsection (b)(2) or (c)(3). The Administrator shall revise the Federal 

6 Acquisition Regulation to include the provision on the list of inapplicable 

7 provisions of law unless the Council makes a determination pursuant to sub8 section (b)(2) or (c)(3) within 60 days after the petition is received. 

9 § 1907. List of laws inapplicable to procurements of commer10 cially available off-the-shelf items 

11 (a) INCLUSION IN FEDERAL ACQUISITION REGULATION.— 

12 (1) IN GENERAL.—The Federal Acquisition Regulation shall include 

13 a list of provisions of law that are inapplicable to contracts for the pro14 curement of commercially available off-the-shelf items. A provision of 

15 law properly included on the list pursuant to paragraph (2) does not 

16 apply to contracts for the procurement of commercially available off17 the-shelf items. This section does not render a provision of law not in18 cluded on the list inapplicable to contracts for the procurement of com19 mercially available off-the-shelf items. 

20 (2) LAWS TO BE INCLUDED.—A provision of law described in sub21 section (b) shall be included on the list of inapplicable provisions of law 

22 required by paragraph (1) unless the Administrator makes a written 

23 determination that it would not be in the best interest of the Federal 

24 Government to exempt contracts for the procurement of commercially 

25 available off-the-shelf items from the applicability of the provision. 

26 (3) OTHER AUTHORITIES OR RESPONSIBILITIES NOT AFFECTED.— 

27 This section does not modify, supersede, impair, or restrict authorities 

28 or responsibilities under— 

29 (A) section 15 of the Small Business Act (15 U.S.C. 644); or 

30 (B) bid protest procedures developed under the authority of— 

31 (i) subchapter V of chapter 35 of title 31; 

32 (ii) section 2305(e) and (f) of title 10; or 

33 (iii) sections 3706 and 3707 of this title. 

34 (b) COVERED LAW.—Except as provided in subsection (a)(3), a provision 

35 of law referred to in subsection (a)(1) is a provision of law that the Admin36 istrator determines imposes Federal Government-unique policies, proce37 dures, requirements, or restrictions for the procurement of property or serv38 ices on persons whom the Federal Government has awarded contracts for 

39 the procurement of commercially available off-the-shelf items, except for a 

40 provision of law that— 

41 (1) provides for criminal or civil penalties; or 


hsrobinson on PROD1PC76 with BILLS
62 

HR 1107 RH 

1 (2) specifically refers to this section and provides that, notwith2 standing this section, it shall be applicable to contracts for the procure3 ment of commercially available off-the-shelf items. 

4 § 1908. Inflation adjustment of acquisition-related dollar 

5 thresholds 

6 (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning 

7 given that term in section 1301 of this title. 

8 (b) APPLICATION.— 

9 (1) IN GENERAL.—Except as provided in paragraph (2), the require10 ment for adjustment under subsection (c) applies to a dollar threshold 

11 that is specified in law as a factor in defining the scope of the applica12 bility of a policy, procedure, requirement, or restriction provided in that 

13 law to the procurement of property or services by an executive agency, 

14 as the Council determines. 

15 (2) EXCEPTIONS.—Subsection (c) does not apply to dollar thresh16 olds— 

17 (A) in chapter 67 of this title; 

18 (B) in sections 3141 to 3144, 3146, and 3147 of title 40; or 

19 (C) the United States Trade Representative establishes pursu20 ant to title III of the Trade Agreements Act of 1979 (19 U.S.C. 

21 2511 et seq.). 

22 (3) RELATIONSHIP TO OTHER INFLATION ADJUSTMENT AUTHORI23 TIES.—This section supersedes the applicability of other provisions of 

24 law that provide for the adjustment of a dollar threshold that is adjust25 able under this section. 

26 (c) REQUIREMENT FOR PERIODIC ADJUSTMENT.— 

27 (1) BASELINE CONSTANT DOLLAR VALUE.—For purposes of para28 graph (2), the baseline constant dollar value for a dollar threshold— 

29 (A) in effect on October 1, 2000, that was first specified in a 

30 law that took effect on or before October 1, 2000, is the October 

31 1, 2000, constant dollar value of that dollar threshold; and 

32 (B) specified in a law that takes effect after October 1, 2000, 

33 is the constant dollar value of that threshold as of the effective 

34 date of that dollar threshold pursuant to that law. 

35 (2) ADJUSTMENT.—On October 1 of each year evenly divisible by 5, 

36 the Council shall adjust each acquisition-related dollar threshold pro37 vided by law, as described in subsection (b)(1), to the baseline constant 

38 dollar value of that threshold. 

39 (3) EXCLUSIVE MEANS OF ADJUSTMENT.—A dollar threshold adjust40 able under this section shall be adjusted only as provided in this sec41 tion. 


hsrobinson on PROD1PC76 with BILLS
63 

HR 1107 RH 

1 (d) PUBLICATION.—The Council shall publish a notice of the adjusted 

2 dollar thresholds under this section in the Federal Register. The thresholds 

3 take effect on the date of publication. 

4 (e) CALCULATION.—An adjustment under this section shall be— 

5 (1) calculated on the basis of changes in the Consumer Price Index 

6 for all-urban consumers published monthly by the Secretary of Labor; 

7 and 

8 (2) rounded, in the case of a dollar threshold that on the day before 

9 the adjustment is— 

10 (A) less than $10,000, to the nearest $500; 

11 (B) not less than $10,000, but less than $100,000, to the near12 est $5,000; 

13 (C) not less than $100,000, but less than $1,000,000, to the 

14 nearest $50,000; and 

15 (D) $1,000,000 or more, to the nearest $500,000. 

16 (f) PETITION FOR INCLUSION OF OMITTED THRESHOLD.— 

17 (1) PETITION SUBMITTED TO ADMINISTRATOR.—A person may re18 quest adjustment of a dollar threshold adjustable under this section 

19 that is not included in a notice of adjustment published under sub20 section (d) by submitting a petition for adjustment to the Adminis21 trator. 

22 (2) ACTIONS OF ADMINISTRATOR.—On receipt of a petition for ad23 justment of a dollar threshold under paragraph (1), the Adminis24 trator— 

25 (A) shall determine, in writing, whether the dollar threshold is 

26 required to be adjusted under this section; and 

27 (B) on determining that it should be adjusted, shall publish in 

28 the Federal Register a revised notice of the adjustment dollar 

29 thresholds under this section that includes the adjustment of the 

30 dollar threshold covered by the petition. 

31 (3) EFFECTIVE DATE OF ADJUSTMENT BY PETITION.—The adjust32 ment of a dollar threshold pursuant to a petition under this subsection 

33 takes effect on the date the revised notice adding the adjustment under 

34 paragraph (2)(B) is published. 

35 CHAPTER 21—RESTRICTIONS ON OBTAINING AND 

36 DISCLOSING CERTAIN INFORMATION 

Sec. 

2101. Definitions. 

2102. Prohibitions on disclosing and obtaining procurement information. 

2103. Actions required of procurement officers when contacted regarding non-Federal employment. 

2104. Prohibition on former official’s acceptance of compensation from contractor. 

2105. Penalties and administrative actions. 


hsrobinson on PROD1PC76 with BILLS
64 

HR 1107 RH 

2106. Reporting information believed to constitute evidence of offense. 

2107. Savings provisions. 

1 § 2101. Definitions 

2 In this chapter: 

3 (1) CONTRACTING OFFICER.—The term ‘‘contracting officer’’ means 

4 an individual who, by appointment in accordance with applicable regu5 lations, has the authority to enter into a Federal agency procurement 

6 contract on behalf of the Government and to make determinations and 

7 findings with respect to the contract. 

8 (2) CONTRACTOR BID OR PROPOSAL INFORMATION.—The term ‘‘con9 tractor bid or proposal information’’ means any of the following infor10 mation submitted to a Federal agency as part of, or in connection with, 

11 a bid or proposal to enter into a Federal agency procurement contract, 

12 if that information previously has not been made available to the public 

13 or disclosed publicly: 

14 (A) Cost or pricing data (as defined in section 2306a(h) of title 

15 10 with respect to procurements subject to that section and sec16 tion 3501(a) of this title with respect to procurements subject to 

17 that section). 

18 (B) Indirect costs and direct labor rates. 

19 (C) Proprietary information about manufacturing processes, op20 erations, or techniques marked by the contractor in accordance 

21 with applicable law or regulation. 

22 (D) Information marked by the contractor as ‘‘contractor bid or 

23 proposal information’’, in accordance with applicable law or regu24 lation. 

25 (3) FEDERAL AGENCY.—The term ‘‘Federal agency’’ has the mean26 ing given that term in section 102 of title 40. 

27 (4) FEDERAL AGENCY PROCUREMENT.—The term ‘‘Federal agency 

28 procurement’’ means the acquisition (by using competitive procedures 

29 and awarding a contract) of goods or services (including construction) 

30 from non-Federal sources by a Federal agency using appropriated 

31 funds. 

32 (5) OFFICIAL.—The term ‘‘official’’ means— 

33 (A) an officer, as defined in section 2104 of title 5; 

34 (B) an employee, as defined in section 2105 of title 5; and 

35 (C) a member of the uniformed services, as defined in section 

36 2101(3) of title 5. 

37 (6) PROTEST.—The term ‘‘protest’’ means a written objection by an 

38 interested party to the award or proposed award of a Federal agency 

39 procurement contract, pursuant to subchapter V of chapter 35 of title 

40 31. 


hsrobinson on PROD1PC76 with BILLS
65 

HR 1107 RH 

1 (7) SOURCE SELECTION INFORMATION.—The term ‘‘source selection 

2 information’’ means any of the following information prepared for use 

3 by a Federal agency to evaluate a bid or proposal to enter into a Fed4 eral agency procurement contract, if that information previously has 

5 not been made available to the public or disclosed publicly: 

6 (A) Bid prices submitted in response to a Federal agency solici7 tation for sealed bids, or lists of those bid prices before public bid 

8 opening. 

9 (B) Proposed costs or prices submitted in response to a Federal 

10 agency solicitation, or lists of those proposed costs or prices. 

11 (C) Source selection plans. 

12 (D) Technical evaluation plans. 

13 (E) Technical evaluations of proposals. 

14 (F) Cost or price evaluations of proposals. 

15 (G) Competitive range determinations that identify proposals 

16 that have a reasonable chance of being selected for award of a 

17 contract. 

18 (H) Rankings of bids, proposals, or competitors. 

19 (I) Reports and evaluations of source selection panels, boards, 

20 or advisory councils. 

21 (J) Other information marked as ‘‘source selection information’’ 

22 based on a case-by-case determination by the head of the agency, 

23 the head’s designee, or the contracting officer that its disclosure 

24 would jeopardize the integrity or successful completion of the Fed25 eral agency procurement to which the information relates. 

26 § 2102. Prohibitions on disclosing and obtaining procure27 ment information 

28 (a) PROHIBITION ON DISCLOSING PROCUREMENT INFORMATION.— 

29 (1) IN GENERAL.—Except as provided by law, a person described in 

30 paragraph (3) shall not knowingly disclose contractor bid or proposal 

31 information or source selection information before the award of a Fed32 eral agency procurement contract to which the information relates. 

33 (2) EMPLOYEE OF PRIVATE SECTOR ORGANIZATION.—In addition to 

34 the restriction in paragraph (1), an employee of a private sector organi35 zation assigned to an agency under chapter 37 of title 5 shall not 

36 knowingly disclose contractor bid or proposal information or source se37 lection information during the 3-year period after the employee’s as38 signment ends, except as provided by law. 

39 (3) APPLICATION.—Paragraph (1) applies to a person that— 

40 (A)(i) is a present or former official of the Federal Government; 

41 or 


hsrobinson on PROD1PC76 with BILLS
66 

HR 1107 RH 

1 (ii) is acting or has acted for or on behalf of, or who is advising 

2 or has advised the Federal Government with respect to, a Federal 

3 agency procurement; and 

4 (B) by virtue of that office, employment, or relationship has or 

5 had access to contractor bid or proposal information or source se6 lection information. 

7 (b) PROHIBITION ON OBTAINING PROCUREMENT INFORMATION.—Except 

8 as provided by law, a person shall not knowingly obtain contractor bid or 

9 proposal information or source selection information before the award of a 

10 Federal agency procurement contract to which the information relates. 

11 § 2103. Actions required of procurement officers when con12 tacted regarding non-Federal employment 

13 (a) ACTIONS REQUIRED.—An agency official participating personally and 

14 substantially in a Federal agency procurement for a contract in excess of 

15 the simplified acquisition threshold who contacts or is contacted by a person 

16 that is a bidder or offeror in that Federal agency procurement regarding 

17 possible non-Federal employment for that official shall— 

18 (1) promptly report the contact in writing to the official’s supervisor 

19 and to the designated agency ethics official (or designee) of the agency 

20 in which the official is employed; and 

21 (2)(A) reject the possibility of non-Federal employment; or 

22 (B) disqualify himself or herself from further personal and substan23 tial participation in that Federal agency procurement until the agency 

24 authorizes the official to resume participation in the procurement, in 

25 accordance with the requirements of section 208 of title 18 and appli26 cable agency regulations on the grounds that— 

27 (i) the person is no longer a bidder or offeror in that Federal 

28 agency procurement; or 

29 (ii) all discussions with the bidder or offeror regarding possible 

30 non-Federal employment have terminated without an agreement or 

31 arrangement for employment. 

32 (b) RETENTION OF REPORTS.—The agency shall retain each report re33 quired by this section for not less than 2 years following the submission of 

34 the report. The reports shall be made available to the public on request, ex35 cept that any part of a report that is exempt from the disclosure require36 ments of section 552 of title 5 under subsection (b)(1) of that section may 

37 be withheld from disclosure to the public. 

38 (c) PERSONS SUBJECT TO PENALTIES.—The following are subject to the 

39 penalties and administrative actions set forth in section 2105 of this title: 

40 (1) An official who knowingly fails to comply with the requirements 

41 of this section. 


hsrobinson on PROD1PC76 with BILLS
67 

HR 1107 RH 

1 (2) A bidder or offeror that engages in employment discussions with 

2 an official who is subject to the restrictions of this section, knowing 

3 that the official has not complied with paragraph (1) or (2) of sub4 section (a). 

5 § 2104. Prohibition on former official’s acceptance of com6 pensation from contractor 

7 (a) PROHIBITION.—A former official of a Federal agency may not accept 

8 compensation from a contractor as an employee, officer, director, or consult9 ant of the contractor within one year after the official— 

10 (1) served, when the contractor was selected or awarded a contract, 

11 as the procuring contracting officer, the source selection authority, a 

12 member of the source selection evaluation board, or the chief of a fi13 nancial or technical evaluation team in a procurement in which that 

14 contractor was selected for award of a contract in excess of 

15 $10,000,000; 

16 (2) served as the program manager, deputy program manager, or ad17 ministrative contracting officer for a contract in excess of $10,000,000 

18 awarded to that contractor; or 

19 (3) personally made for the Federal agency a decision to— 

20 (A) award a contract, subcontract, modification of a contract or 

21 subcontract, or a task order or delivery order in excess of 

22 $10,000,000 to that contractor; 

23 (B) establish overhead or other rates applicable to one or more 

24 contracts for that contractor that are valued in excess of 

25 $10,000,000; 

26 (C) approve issuance of one or more contract payments in ex27 cess of $10,000,000 to that contractor; or 

28 (D) pay or settle a claim in excess of $10,000,000 with that 

29 contractor. 

30 (b) WHEN COMPENSATION MAY BE ACCEPTED.—Subsection (a) does not 

31 prohibit a former official of a Federal agency from accepting compensation 

32 from a division or affiliate of a contractor that does not produce the same 

33 or similar products or services as the entity of the contractor that is respon34 sible for the contract referred to in paragraph (1), (2), or (3) of subsection 

35 (a). 

36 (c) IMPLEMENTING REGULATIONS.—Regulations implementing this sec37 tion shall include procedures for an official or former official of a Federal 

38 agency to request advice from the appropriate designated agency ethics offi39 cial regarding whether the official or former official is or would be precluded 

40 by this section from accepting compensation from a particular contractor. 


hsrobinson on PROD1PC76 with BILLS
68 

HR 1107 RH 

1 (d) PERSONS SUBJECT TO PENALTIES.—The following are subject to the 

2 penalties and administrative actions set forth in section 2105 of this title: 

3 (1) A former official who knowingly accepts compensation in viola4 tion of this section. 

5 (2) A contractor that provides compensation to a former official 

6 knowing that the official accepts the compensation in violation of this 

7 section. 

8 § 2105. Penalties and administrative actions 

9 (a) CRIMINAL PENALTIES.—A person that violates section 2102 of this 

10 title to exchange information covered by section 2102 of this title for any11 thing of value or to obtain or give a person a competitive advantage in the 

12 award of a Federal agency procurement contract shall be fined under title 

13 18, imprisoned for not more than 5 years, or both. 

14 (b) CIVIL PENALTIES.—The Attorney General may bring a civil action in 

15 an appropriate district court of the United States against a person that en16 gages in conduct that violates section 2102, 2103, or 2104 of this title. On 

17 proof of that conduct by a preponderance of the evidence— 

18 (1) an individual is liable to the Federal Government for a civil pen19 alty of not more than $50,000 for each violation plus twice the amount 

20 of compensation that the individual received or offered for the prohib21 ited conduct; and 

22 (2) an organization is liable to the Federal Government for a civil 

23 penalty of not more than $500,000 for each violation plus twice the 

24 amount of compensation that the organization received or offered for 

25 the prohibited conduct. 

26 (c) ADMINISTRATIVE ACTIONS.— 

27 (1) TYPES OF ACTION THAT FEDERAL AGENCY MAY TAKE.—A Fed28 eral agency that receives information that a contractor or a person has 

29 violated section 2102, 2103, or 2104 of this title shall consider taking 

30 one or more of the following actions, as appropriate: 

31 (A) Canceling the Federal agency procurement, if a contract has 

32 not yet been awarded. 

33 (B) Rescinding a contract with respect to which— 

34 (i) the contractor or someone acting for the contractor has 

35 been convicted for an offense punishable under subsection (a); 

36 or 

37 (ii) the head of the agency that awarded the contract has 

38 determined, based on a preponderance of the evidence, that 

39 the contractor or a person acting for the contractor has en40 gaged in conduct constituting the offense. 


hsrobinson on PROD1PC76 with BILLS
69 

HR 1107 RH 

1 (C) Initiating a suspension or debarment proceeding for the pro2 tection of the Federal Government in accordance with procedures 

3 in the Federal Acquisition Regulation. 

4 (D) Initiating an adverse personnel action, pursuant to the pro5 cedures in chapter 75 of title 5 or other applicable law or regula6 tion. 

7 (2) AMOUNT GOVERNMENT ENTITLED TO RECOVER.—When a Fed8 eral agency rescinds a contract pursuant to paragraph (1)(B), the Fed9 eral Government is entitled to recover, in addition to any penalty pre10 scribed by law, the amount expended under the contract. 

11 (3) PRESENT RESPONSIBILITY AFFECTED BY CONDUCT.—For pur12 poses of a suspension or debarment proceeding initiated pursuant to 

13 paragraph (1)(C), engaging in conduct constituting an offense under 

14 section 2102, 2103, or 2104 of this title affects the present responsi15 bility of a Federal Government contractor or subcontractor. 

16 § 2106. Reporting information believed to constitute evi17 dence of offense 

18 A person may not file a protest against the award or proposed award of 

19 a Federal agency procurement contract alleging a violation of section 2102, 

20 2103, or 2104 of this title, and the Comptroller General may not consider 

21 that allegation in deciding a protest, unless the person, no later than 14 

22 days after the person first discovered the possible violation, reported to the 

23 Federal agency responsible for the procurement the information that the 

24 person believed constitutes evidence of the offense. 

25 § 2107. Savings provisions 

26 This chapter does not— 

27 (1) restrict the disclosure of information to, or its receipt by, a per28 son or class of persons authorized, in accordance with applicable agency 

29 regulations or procedures, to receive that information; 

30 (2) restrict a contractor from disclosing its own bid or proposal in31 formation or the recipient from receiving that information; 

32 (3) restrict the disclosure or receipt of information relating to a Fed33 eral agency procurement after it has been canceled by the Federal 

34 agency before contract award unless the Federal agency plans to re35 sume the procurement; 

36 (4) prohibit individual meetings between a Federal agency official 

37 and an offeror or potential offeror for, or a recipient of, a contract or 

38 subcontract under a Federal agency procurement, provided that unau39 thorized disclosure or receipt of contractor bid or proposal information 

40 or source selection information does not occur; 


hsrobinson on PROD1PC76 with BILLS
70 

HR 1107 RH 

1 (5) authorize the withholding of information from, nor restrict its re2 ceipt by, Congress, a committee or subcommittee of Congress, the 

3 Comptroller General, a Federal agency, or an inspector general of a 

4 Federal agency; 

5 (6) authorize the withholding of information from, nor restrict its re6 ceipt by, the Comptroller General in the course of a protest against the 

7 award or proposed award of a Federal agency procurement contract; 

8 or 

9 (7) limit the applicability of a requirement, sanction, contract pen10 alty, or remedy established under another law or regulation. 

11 CHAPTER 23—MISCELLANEOUS 

Sec. 

2301. Use of electronic commerce in Federal procurement. 

2302. Rights in technical data. 

2303. Ethics safeguards related to contractor conflicts of interest. 

2304. Conflict of interest standards for consultants. 

2305. Authority of Director of Office of Management and Budget not affected. 

2306. Openness of meetings. 

2307. Comptroller General’s access to information. 

2308. Modular contracting for information technology. 

2309. Protection of constitutional rights of contractors. 

2310. Performance-based contracts or task orders for services to be treated as contracts for 

the procurement of commercial items. 

2311. Enhanced transparency on interagency contracting and other transactions. 

2312. Contingency Contracting Corps. 

2313. Database for Federal agency contract and grant officers and suspension and debarment officials 

12 § 2301. Use of electronic commerce in Federal procurement 

13 (a) DEFINITION.—For the purposes of this section, the term ‘‘electronic 

14 commerce’’ means electronic techniques for accomplishing business trans15 actions, including electronic mail or messaging, World Wide Web technology, 

16 electronic bulletin boards, purchase cards, electronic funds transfers, and 

17 electronic data interchange. 

18 (b) ESTABLISHMENT, MAINTENANCE, AND USE OF ELECTRONIC COM19 MERCE PROCEDURES AND PROCESSES.—The head of each executive agency, 

20 after consulting with the Administrator, shall establish, maintain, and use, 

21 to the maximum extent that is practicable and cost-effective, procedures and 

22 processes that employ electronic commerce in the conduct and administra23 tion of the procurement system of the agency. 

24 (c) APPLICABLE STANDARDS.—In conducting electronic commerce, the 

25 head of an executive agency shall apply nationally and internationally recog26 nized standards that broaden interoperability and ease the electronic inter27 change of information. 

28 (d) REQUIREMENTS OF SYSTEMS, TECHNOLOGIES, PROCEDURES, AND

29 PROCESSES.—The head of each executive agency shall ensure that systems, 

30 technologies, procedures, and processes established pursuant to this sec31 tion— 


hsrobinson on PROD1PC76 with BILLS
71 

HR 1107 RH 

1 (1) are implemented with uniformity throughout the agency, to the 

2 extent practicable; 

3 (2) are implemented only after granting due consideration to the use 

4 or partial use, as appropriate, of existing electronic commerce and elec5 tronic data interchange systems and infrastructures such as the Fed6 eral acquisition computer network architecture known as FACNET; 

7 (3) facilitate access to Federal Government procurement opportuni8 ties, including opportunities for small business concerns, socially and 

9 economically disadvantaged small business concerns, and business con10 cerns owned predominantly by women; and 

11 (4) ensure that any notice of agency requirements or agency solicita12 tion for contract opportunities is provided in a form that allows conven13 ient and universal user access through a single, Government-wide point 

14 of entry. 

15 (e) IMPLEMENTATION.—In carrying out the requirements of this section, 

16 the Administrator shall— 

17 (1) issue policies to promote, to the maximum extent practicable, 

18 uniform implementation of this section by executive agencies, with due 

19 regard for differences in program requirements among agencies that 

20 may require departures from uniform procedures and processes in ap21 propriate cases, when warranted because of the agency mission; 

22 (2) ensure that the head of each executive agency complies with the 

23 requirements of subsection (d); and 

24 (3) consult with the heads of appropriate Federal agencies with ap25 plicable technical and functional expertise, including the Office of In26 formation and Regulatory Affairs, the National Institute of Standards 

27 and Technology, the General Services Administration, and the Depart28 ment of Defense. 

29 § 2302. Rights in technical data 

30 (a) WHERE DEFINED.—The legitimate proprietary interest of the Federal 

31 Government and of a contractor in technical or other data shall be defined 

32 in regulations prescribed as part of the Federal Acquisition Regulation. 

33 (b) GENERAL EXTENT OF REGULATIONS.— 

34 (1) OTHER RIGHTS NOT IMPAIRED.—Regulations prescribed under 

35 subsection (a) may not impair a right of the Federal Government or 

36 of a contractor with respect to a patent or copyright or another right 

37 in technical data otherwise established by law. 

38 (2) LIMITATION ON REQUIRING DATA BE PROVIDED TO THE GOV39 ERNMENT.—With respect to executive agencies subject to division C, 

40 regulations prescribed under subsection (a) shall provide that the Fed41 eral Government may not require a person that has developed a prodVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
72 

HR 1107 RH 

1 uct (or process offered or to be offered for sale to the public) to provide 

2 to the Federal Government technical data relating to the design (or de3 velopment or manufacture of the product or process) as a condition of 

4 procurement by the Federal Government of the product or process. 

5 This paragraph does not apply to data that may be necessary for the 

6 Federal Government to operate and maintain the product or use the 

7 process if the Federal Government obtains it as an element of perform8 ance under the contract. 

9 (c) TECHNICAL DATA DEVELOPED WITH FEDERAL FUNDS.— 

10 (1) USE BY GOVERNMENT AND AGENCIES.—Except as otherwise ex11 pressly provided by Federal statute, with respect to executive agencies 

12 subject to division C, regulations prescribed under subsection (a) shall 

13 provide that— 

14 (A) the Federal Government has unlimited rights in technical 

15 data developed exclusively with Federal funds if delivery of the 

16 data— 

17 (i) was required as an element of performance under a con18 tract; and 

19 (ii) is needed to ensure the competitive acquisition of sup20 plies or services that will be required in substantial quantities 

21 in the future; and 

22 (B) the Federal Government and each agency of the Federal 

23 Government has an unrestricted, royalty-free right to use, or to 

24 have its contractors use, for governmental purposes (excluding 

25 publication outside the Federal Government) technical data devel26 oped exclusively with Federal funds. 

27 (2) REQUIREMENTS IN ADDITION TO OTHER RIGHTS OF THE GOV28 ERNMENT.—The requirements of paragraph (1) are in addition to and 

29 not in lieu of any other rights the Federal Government may have pur30 suant to law. 

31 (d) FACTORS TO BE CONSIDERED IN PRESCRIBING REGULATIONS.—The 

32 following factors shall be considered in prescribing regulations under sub33 section (a): 

34 (1) Whether the item or process to which the technical data pertains 

35 was developed— 

36 (A) exclusively with Federal funds; 

37 (B) exclusively at private expense; or 

38 (C) in part with Federal funds and in part at private expense. 

39 (2) The statement of congressional policy and objectives in section 

40 200 of title 35, the statement of purposes in section 2(b) of the Small 

41 Business Innovation Development Act of 1982 (Public Law 97–219, 15 


hsrobinson on PROD1PC76 with BILLS
73 

HR 1107 RH 

1 U.S.C. 638 note), and the declaration of policy in section 2 of the 

2 Small Business Act (15 U.S.C. 631). 

3 (3) The interest of the Federal Government in increasing competi4 tion and lowering costs by developing and locating alternative sources 

5 of supply and manufacture. 

6 (e) PROVISIONS REQUIRED IN CONTRACTS.—Regulations prescribed 

7 under subsection (a) shall require that a contract for property or services 

8 entered into by an executive agency contain appropriate provisions relating 

9 to technical data, including provisions— 

10 (1) defining the respective rights of the Federal Government and the 

11 contractor or subcontractor (at any tier) regarding technical data to be 

12 delivered under the contract; 

13 (2) specifying technical data to be delivered under the contract and 

14 schedules for delivery; 

15 (3) establishing or referencing procedures for determining the ac16 ceptability of technical data to be delivered under the contract; 

17 (4) establishing separate contract line items for technical data to be 

18 delivered under the contract; 

19 (5) to the maximum practicable extent, identifying, in advance of de20 livery, technical data which is to be delivered with restrictions on the 

21 right of the Federal Government to use the data; 

22 (6) requiring the contractor to revise any technical data delivered 

23 under the contract to reflect engineering design changes made during 

24 the performance of the contract and affecting the form, fit, and func25 tion of the items specified in the contract and to deliver the revised 

26 technical data to an agency within a time specified in the contract; 

27 (7) requiring the contractor to furnish written assurance, when tech28 nical data is delivered or is made available, that the technical data is 

29 complete and accurate and satisfies the requirements of the contract 

30 concerning technical data; 

31 (8) establishing remedies to be available to the Federal Government 

32 when technical data required to be delivered or made available under 

33 the contract is found to be incomplete or inadequate or to not satisfy 

34 the requirements of the contract concerning technical data; and 

35 (9) authorizing the head of the agency to withhold payments under 

36 the contract (or exercise another remedy the head of the agency con37 siders appropriate) during any period if the contractor does not meet 

38 the requirements of the contract pertaining to the delivery of technical 

39 data. 


hsrobinson on PROD1PC76 with BILLS
74 

HR 1107 RH 

1 § 2303. Ethics safeguards related to contractor conflicts of 

2 interest 

3 (a) DEFINITION.—In this section, the term ‘‘relevant acquisition func4 tion’’ means an acquisition function closely associated with inherently gov5 ernmental functions. 

6 (b) POLICY ON PERSONAL CONFLICTS OF INTEREST BY CONTRACTOR

7 EMPLOYEES.— 

8 (1) DEVELOPMENT AND ISSUANCE OF POLICY.—The Administrator 

9 shall develop and issue a standard policy to prevent personal conflicts 

10 of interest by contractor employees performing relevant acquisition 

11 functions (including the development, award, and administration of 

12 Federal Government contracts) for or on behalf of a Federal agency 

13 or department. 

14 (2) ELEMENTS OF POLICY.—The policy shall— 

15 (A) define ‘‘personal conflict of interest’’ as it relates to con16 tractor employees performing relevant acquisition functions; and 

17 (B) require each contractor whose employees perform relevant 

18 acquisition functions to— 

19 (i) identify and prevent personal conflicts of interest for the 

20 employees; 

21 (ii) prohibit contractor employees who have access to non22 public government information obtained while performing rel23 evant acquisition functions from using the information for 

24 personal gain; 

25 (iii) report any personal conflict-of-interest violation by an 

26 employee to the applicable contracting officer or contracting 

27 officer’s representative as soon as it is identified; 

28 (iv) maintain effective oversight to verify compliance with 

29 personal conflict-of-interest safeguards; 

30 (v) have procedures in place to screen for potential conflicts 

31 of interest for all employees performing relevant acquisition 

32 functions; and 

33 (vi) take appropriate disciplinary action in the case of em34 ployees who fail to comply with policies established pursuant 

35 to this section. 

36 (3) CONTRACT CLAUSE.— 

37 (A) CONTENTS.—The Administrator shall develop a personal 

38 conflicts-of-interest clause or a set of clauses for inclusion in solici39 tations and contracts (and task or delivery orders) for the per40 formance of relevant acquisition functions that sets forth— 


hsrobinson on PROD1PC76 with BILLS
75 

HR 1107 RH 

1 (i) the personal conflicts-of-interest policy developed under 

2 this subsection; and 

3 (ii) the contractor’s responsibilities under the policy. 

4 (B) EFFECTIVE DATE.—Subparagraph (A) shall take effect 300 

5 days after October 14, 2008, and shall apply to— 

6 (i) contracts entered into on or after that effective date; 

7 and 

8 (ii) task or delivery orders awarded on or after that effec9 tive date, regardless of whether the contracts pursuant to 

10 which the task or delivery orders are awarded are entered be11 fore, on, or after October 14, 2008. 

12 (4) APPLICABILITY.— 

13 (A) CONTRACTS IN EXCESS OF THE SIMPLIFIED ACQUISITION

14 THRESHOLD.—This subsection shall apply to any contract for an 

15 amount in excess of the simplified acquisition threshold (as de16 fined in section 134 of this title) if the contract is for the perform17 ance of relevant acquisition functions. 

18 (B) PARTIAL APPLICABILITY.—If only a portion of a contract 

19 described in subparagraph (A) is for the performance of relevant 

20 acquisition functions, then this subsection applies only to that por21 tion of the contract. 

22 (c) BEST PRACTICES.—The Administrator shall, in consultation with the 

23 Director of the Office of Government Ethics, develop and maintain a reposi24 tory of best practices relating to the prevention and mitigation of organiza25 tional and personal conflicts of interest in Federal contracting. 

26 § 2304. Conflict of interest standards for consultants 

27 (a) CONTENT OF REGULATIONS.—The Administrator shall prescribe 

28 under this division Government-wide regulations that set forth— 

29 (1) conflict of interest standards for persons who provide consulting 

30 services described in subsection (b); and 

31 (2) procedures, including registration, certification, and enforcement 

32 requirements as may be appropriate, to promote compliance with the 

33 standards. 

34 (b) SERVICES SUBJECT TO REGULATIONS.—Regulations required by sub35 section (a) apply to— 

36 (1) advisory and assistance services provided to the Federal Govern37 ment to the extent necessary to identify and evaluate the potential for 

38 conflicts of interest that could be prejudicial to the interests of the 

39 United States; 

40 (2) services related to support of the preparation or submission of 

41 bids and proposals for Federal contracts to the extent that inclusion 


hsrobinson on PROD1PC76 with BILLS
76 

HR 1107 RH 

1 of the services in the regulations is necessary to identify and evaluate 

2 the potential for conflicts of interest that could be prejudicial to the 

3 interests of the United States; and 

4 (3) other services related to Federal contracts as specified in the reg5 ulations prescribed under subsection (a) to the extent necessary to 

6 identify and evaluate the potential for conflicts of interest that could 

7 be prejudicial to the interests of the United States. 

8 (c) INTELLIGENCE ACTIVITIES EXEMPTION.— 

9 (1) ACTIVITIES THAT MAY BE EXEMPT.—Intelligence activities as de10 fined in section 3.4(e) of Executive Order No. 12333 or a comparable 

11 definitional section in any successor order may be exempt from the reg12 ulations required by subsection (a). 

13 (2) REPORT.—The Director of National Intelligence shall report to 

14 the Intelligence and Appropriations Committees of Congress each Jan15 uary 1, delineating the activities and organizations that have been ex16 empted under paragraph (1). 

17 (d) PRESIDENTIAL DETERMINATION.—Before the regulations required by 

18 subsection (a) are prescribed, the President shall determine if prescribing 

19 the regulations will have a significantly adverse effect on the accomplish20 ment of the mission of the Defense Department or another Federal agency. 

21 If the President determines that the regulations will have such an adverse 

22 effect, the President shall so report to the appropriate committees of the 

23 Senate and the House of Representatives, stating in full the reasons for the 

24 determination. If such a report is submitted, the requirement for the regula25 tions shall be null and void. 

26 § 2305. Authority of Director of Office of Management and 

27 Budget not affected 

28 This division does not limit the authorities and responsibilities of the Di29 rector of the Office of Management and Budget in effect on December 1, 

30 1983. 

31 § 2306. Openness of meetings 

32 The Administrator by regulation shall require that— 

33 (1) formal meetings of the Office of Federal Procurement Policy, as 

34 designated by the Administrator, for developing procurement policies 

35 and regulations be open to the public; and 

36 (2) public notice of each meeting be given not less than 10 days 

37 prior to the meeting. 

38 § 2307. Comptroller General’s access to information 

39 The Administrator and personnel in the Office of Federal Procurement 

40 Policy shall furnish information the Comptroller General may require to dis41 charge the responsibilities of the Comptroller General. For this purpose, the 


hsrobinson on PROD1PC76 with BILLS
77 

HR 1107 RH 

1 Comptroller General or his representatives shall have access to all books, 

2 documents, papers, and records of the Office of Federal Procurement Pol3 icy. 

4 § 2308. Modular contracting for information technology 

5 (a) USE.—To the maximum extent practicable, the head of an executive 

6 agency should use modular contracting for an acquisition of a major system 

7 of information technology. 

8 (b) MODULAR CONTRACTING DESCRIBED.—Under modular contracting, 

9 an executive agency’s need for a system is satisfied in successive acquisi10 tions of interoperable increments. Each increment complies with common or 

11 commercially accepted standards applicable to information technology so 

12 that the increments are compatible with other increments of information 

13 technology comprising the system. 

14 (c) PROVISIONS IN FEDERAL ACQUISITION REGULATION.—The Federal 

15 Acquisition Regulation shall provide that— 

16 (1) under the modular contracting process, an acquisition of a major 

17 system of information technology may be divided into several smaller 

18 acquisition increments that— 

19 (A) are easier to manage individually than would be one com20 prehensive acquisition; 

21 (B) address complex information technology objectives incre22 mentally in order to enhance the likelihood of achieving workable 

23 solutions for attaining those objectives; 

24 (C) provide for delivery, implementation, and testing of work25 able systems or solutions in discrete increments, each of which 

26 comprises a system or solution that is not dependent on a subse27 quent increment in order to perform its principal functions; and 

28 (D) provide an opportunity for subsequent increments of the ac29 quisition to take advantage of any evolution in technology or needs 

30 that occurs during conduct of the earlier increments; 

31 (2) to the maximum extent practicable, a contract for an increment 

32 of an information technology acquisition should be awarded within 180 

33 days after the solicitation is issued and, if the contract for that incre34 ment cannot be awarded within that period, the increment should be 

35 considered for cancellation; and 

36 (3) the information technology provided for in a contract for acquisi37 tion of information technology should be delivered within 18 months 

38 after the solicitation resulting in award of the contract was issued. 

39 § 2309. Protection of constitutional rights of contractors 

40 (a) PROHIBITION ON REQUIRING WAIVER OF RIGHTS.—A contractor may 

41 not be required, as a condition for entering into a contract with the Federal 


hsrobinson on PROD1PC76 with BILLS
78 

HR 1107 RH 

1 Government, to waive a right under the Constitution for a purpose relating 

2 to the Chemical Weapons Convention Implementation Act of 1998 (22 

3 U.S.C. 6701 et seq.) or the Chemical Weapons Convention (as defined in 

4 section 3 of that Act (22 U.S.C. 6701)). 

5 (b) PERMISSIBLE CONTRACT CLAUSES.—Subsection (a) does not prohibit 

6 an executive agency from including in a contract a clause that requires the 

7 contractor to permit inspections to ensure that the contractor is performing 

8 the contract in accordance with the provisions of the contract. 

9 § 2310. Performance-based contracts or task orders for serv10 ices to be treated as contracts for the procurement 

11 of commercial items 

12 (a) CRITERIA.—A performance-based contract for the procurement of 

13 services entered into by an executive agency or a performance-based task 

14 order for services issued by an executive agency may be treated as a con15 tract for the procurement of commercial items if— 

16 (1) the value of the contract or task order is estimated not to exceed 

17 $25,000,000; 

18 (2) the contract or task order sets forth specifically each task to be 

19 performed and, for each task— 

20 (A) defines the task in measurable, mission-related terms; 

21 (B) identifies the specific end products or output to be achieved; 

22 and 

23 (C) contains firm, fixed prices for specific tasks to be performed 

24 or outcomes to be achieved; and 

25 (3) the source of the services provides similar services to the general 

26 public under terms and conditions similar to those offered to the Fed27 eral Government. 

28 (b) REGULATIONS.—Regulations implementing this section shall require 

29 agencies to collect and maintain reliable data sufficient to identify the con30 tracts or task orders treated as contracts for commercial items using the 

31 authority of this section. The data may be collected using the Federal Pro32 curement Data System or other reporting mechanism. 

33 (c) REPORT.—Not later than 2 years after November 24, 2003, the Di34 rector of the Office of Management and Budget shall prepare and submit 

35 to the Committees on Homeland Security and Governmental Affairs and on 

36 Armed Services of the Senate and the Committees on Oversight and Gov37 ernment Reform and on Armed Services of the House of Representatives 

38 a report on the contracts or task orders treated as contracts for commercial 

39 items using the authority of this section. The report shall include data on 

40 the use of the authority, both government-wide and for each department 

41 and agency. 


hsrobinson on PROD1PC76 with BILLS
79 

HR 1107 RH 

1 (d) EXPIRATION.—The authority under this section expires 10 years after 

2 November 24, 2003. 

3 § 2311. Enhanced transparency on interagency contracting 

4 and other transactions 

5 The Director of the Office of Management and Budget shall direct appro6 priate revisions to the Federal Procurement Data System or any successor 

7 system to facilitate the collection of complete, timely, and reliable data on 

8 interagency contracting actions and on transactions other than contracts, 

9 grants, and cooperative agreements issued pursuant to section 2371 of title 

10 10 or similar authorities. The Director of the Office of Management and 

11 Budget shall ensure that data, consistent with what is collected for contract 

12 actions, is obtained on— 

13 (1) interagency contracting actions, including data at the task or de14 livery-order level; and 

15 (2) other transactions, including the initial award and any subse16 quent modifications awarded or orders issued (other than transactions 

17 that are reported through the Federal Assistance Awards Data Sys18 tem). 

19 § 2312. Contingency Contracting Corps 

20 (a) DEFINITION.—In this section, the term ‘‘Corps’’ means the Contin21 gency Contracting Corps established in subsection (b). 

22 (b) ESTABLISHMENT.—The Administrator of General Services, pursuant 

23 to policies established by the Office of Management and Budget, and in con24 sultation with the Secretary of Defense and the Secretary of Homeland Se25 curity, shall establish a Government-wide Contingency Contracting Corps. 

26 (c) Function.—The members of the Corps shall be available for deploy27 ment in responding to an emergency or major disaster, or a contingency op28 eration, both within or outside the continental United States. 

29 (d) APPLICABILITY.—The authorities provided in this section apply with 

30 respect to any procurement of property or services by or for an executive 

31 agency that, as determined by the head of the executive agency, are to be 

32 used— 

33 (1) in support of a contingency operation as defined in section 

34 101(a)(13) of title 10; or 

35 (2) to respond to an emergency or major disaster as defined in sec36 tion 102 of the Robert T. Stafford Disaster Relief and Emergency As37 sistance Act (42 U.S.C. 5122). 

38 (e) MEMBERSHIP.—Membership in the Corps shall be voluntary and open 

39 to all Federal employees and members of the Armed Forces who are mem40 bers of the Federal acquisition workforce. 


hsrobinson on PROD1PC76 with BILLS
80 

HR 1107 RH 

1 (f) EDUCATION AND TRAINING.—The Administrator of General Services 

2 may, in consultation with the Director of the Federal Acquisition Institute 

3 and the Chief Acquisition Officers Council, establish educational and train4 ing requirements for members of the Corps. Education and training carried 

5 out pursuant to the requirements shall be paid for from funds available in 

6 the acquisition workforce training fund established pursuant to section 

7 1703(i) of this title. 

8 (g) SALARY.—The salary for a member of the Corps shall be paid— 

9 (1) in the case of a member of the Armed Forces, out of funds avail10 able to the Armed Force concerned; and 

11 (2) in the case of a Federal employee, out of funds available to the 

12 employing agency. 

13 (h) AUTHORITY TO DEPLOY THE CORPS.— 

14 (1) DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET.— 

15 The Director of the Office of Management and Budget shall have the 

16 authority, upon request by an executive agency, to determine when 

17 members of the Corps shall be deployed, with the concurrence of the 

18 head of the agency or agencies employing the members to be deployed. 

19 (2) SECRETARY OF DEFENSE.—Nothing in this section shall pre20 clude the Secretary of Defense or the Secretary’s designee from deploy21 ing members of the Armed Forces or civilian personnel of the Depart22 ment of Defense in support of a contingency operation as defined in 

23 section 101(a)(13) of title 10. 

24 (i) ANNUAL REPORT.— 

25 (1) IN GENERAL.—The Administrator of General Services shall pro26 vide to the Committee on Homeland Security and Governmental Affairs 

27 and the Committee on Armed Services of the Senate and the Com28 mittee on Oversight and Government Reform and the Committee on 

29 Armed Services of the House of Representatives an annual report on 

30 the status of the Corps as of September 30 of each fiscal year. 

31 (2) CONTENT.—Each report under paragraph (1) shall include the 

32 number of members of the Corps, the total cost of operating the pro33 gram, the number of deployments of members of the program, and the 

34 performance of members of the program in deployment. 

35 § 2313. Database for Federal agency contract and grant offi36 cers and suspension and debarment officials 

37 (a) IN GENERAL.—Subject to the authority, direction, and control of the 

38 Director of the Office of Management and Budget, the Administrator of 

39 General Services shall establish and maintain a database of information re40 garding the integrity and performance of certain persons awarded Federal 


hsrobinson on PROD1PC76 with BILLS
81 

HR 1107 RH 

1 agency contracts and grants for use by Federal agency officials having au2 thority over contracts and grants. 

3 (b) PERSONS COVERED.—The database shall cover the following: 

4 (1) Any person awarded a Federal agency contract or grant in excess 

5 of $500,000, if any information described in subsection (c) exists with 

6 respect to the person. 

7 (2) Any person awarded such other category or categories of Federal 

8 agency contract as the Federal Acquisition Regulation may provide, if 

9 any information described in subsection (c) exists with respect to the 

10 person. 

11 (c) INFORMATION INCLUDED.—With respect to a covered person, the 

12 database shall include information (in the form of a brief description) for 

13 the most recent 5-year period regarding the following: 

14 (1) Each civil or criminal proceeding, or any administrative pro15 ceeding, in connection with the award or performance of a contract or 

16 grant with the Federal Government with respect to the person during 

17 the period to the extent that the proceeding results in the following dis18 positions: 

19 (A) In a criminal proceeding, a conviction. 

20 (B) In a civil proceeding, a finding of fault and liability that 

21 results in the payment of a monetary fine, penalty, reimburse22 ment, restitution, or damages of $5,000 or more. 

23 (C) In an administrative proceeding, a finding of fault and li24 ability that results in— 

25 (i) the payment of a monetary fine or penalty of $5,000 

26 or more; or 

27 (ii) the payment of a reimbursement, restitution, or dam28 ages in excess of $100,000. 

29 (D) To the maximum extent practicable and consistent with ap30 plicable laws and regulations, in a criminal, civil, or administrative 

31 proceeding, a disposition of the matter by consent or compromise 

32 with an acknowledgment of fault by the person if the proceeding 

33 could have led to any of the outcomes specified in subparagraph 

34 (A), (B), or (C). 

35 (2) Each Federal contract and grant awarded to the person that was 

36 terminated in the period due to default. 

37 (3) Each Federal suspension and debarment of the person. 

38 (4) Each Federal administrative agreement entered into by the per39 son and the Federal Government in the period to resolve a suspension 

40 or debarment proceeding. 


hsrobinson on PROD1PC76 with BILLS
82 

HR 1107 RH 

1 (5) Each final finding by a Federal official in the period that the 

2 person has been determined not to be a responsible source under para3 graph (3) or (4) of section 113 of this title. 

4 (6) Other information that shall be provided for purposes of this sec5 tion in the Federal Acquisition Regulation. 

6 (7) To the maximum extent practicable, information similar to the 

7 information covered by paragraphs (1) to (4) in connection with the 

8 award or performance of a contract or grant with a State government. 

9 (d) REQUIREMENTS RELATING TO DATABASE INFORMATION.— 

10 (1) DIRECT INPUT AND UPDATE.—The Administrator of General 

11 Services shall design and maintain the database in a manner that al12 lows the appropriate Federal agency officials to directly input and up13 date information in the database relating to actions that the officials 

14 have taken with regard to contractors or grant recipients. 

15 (2) TIMELINESS AND ACCURACY.—The Administrator of General 

16 Services shall develop policies to require— 

17 (A) the timely and accurate input of information into the data18 base; 

19 (B) the timely notification of any covered person when informa20 tion relevant to the person is entered into the database; and 

21 (C) opportunities for any covered person to submit comments 

22 pertaining to information about the person for inclusion in the 

23 database. 

24 (e) USE OF DATABASE.— 

25 (1) AVAILABILITY TO GOVERNMENT OFFICIALS.—The Administrator 

26 of General Services shall ensure that the information in the database 

27 is available to appropriate acquisition officials of Federal agencies, 

28 other government officials as the Administrator of General Services de29 termines appropriate, and, on request, the Chairman and Ranking 

30 Member of the committees of Congress having jurisdiction. 

31 (2) REVIEW AND ASSESSMENT OF DATA.— 

32 (A) IN GENERAL.—Before awarding a contract or grant in ex33 cess of the simplified acquisition threshold under section 134 of 

34 this title, the Federal agency official responsible for awarding the 

35 contract or grant shall review the database and consider all infor36 mation in the database with regard to any offer or proposal, and 

37 in the case of a contract, shall consider other past performance 

38 information available with respect to the offeror in making any re39 sponsibility determination or past performance evaluation for the 

40 offeror. 


hsrobinson on PROD1PC76 with BILLS
83 

HR 1107 RH 

1 (B) DOCUMENTATION IN CONTRACT FILE.—The contract file 

2 for each contract of a Federal agency in excess of the simplified 

3 acquisition threshold shall document the manner in which the ma4 terial in the database was considered in any responsibility deter5 mination or past performance evaluation. 

6 (f) DISCLOSURE IN APPLICATIONS.—The Federal Acquisition Regulation 

7 shall require that persons with Federal agency contracts and grants valued 

8 in total greater than $10,000,000 shall— 

9 (1) submit to the Administrator of General Services, in a manner de10 termined appropriate by the Administrator of General Services, the in11 formation subject to inclusion in the database as listed in subsection 

12 (c) current as of the date of submittal of the information under this 

13 subsection; and 

14 (2) update the information submitted under paragraph (1) on a 

15 semiannual basis. 

16 (g) RULEMAKING.—The Administrator of General Services shall prescribe 

17 regulations that may be necessary to carry out this section. 

18 DIVISION C—PROCUREMENT

19 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. 

20 § 3101. Applicability 

21 (a) IN GENERAL.—An executive agency shall make purchases and con22 tracts for property and services in accordance with this division and imple23 menting regulations of the Administrator of General Services. 

24 (b) SIMPLIFIED ACQUISITION THRESHOLD AND PROCEDURES.— 

25 (1) SIMPLIFIED ACQUISITION THRESHOLD.— 

26 (A) DEFINITION.—For purposes of an acquisition by an execu27 tive agency, the simplified acquisition threshold is as specified in 

28 section 134 of this title. 

29 (B) INAPPLICABLE LAWS.—A law properly listed in the Federal 

30 Acquisition Regulation pursuant to section 1905 of this title does 

31 not apply to or with respect to a contract or subcontract that is 

32 not greater than the simplified acquisition threshold. 

33 (2) SIMPLIFIED ACQUISITION PROCEDURES.—Simplified acquisition 

34 procedures contained in the Federal Acquisition Regulation pursuant to 

35 section 1901 of this title apply in executive agencies as provided in sec36 tion 1901. 


hsrobinson on PROD1PC76 with BILLS
84 

HR 1107 RH 

1 (c) EXCEPTIONS.— 

2 (1) IN GENERAL.—This division does not apply— 

3 (A) to the Department of Defense, the Coast Guard, and the 

4 National Aeronautics and Space Administration; or 

5 (B) except as provided in paragraph (2), when this division is 

6 made inapplicable pursuant to law. 

7 (2) APPLICABILITY OF CERTAIN LAWS RELATED TO ADVERTISING, 

8 OPENING OF BIDS, AND LENGTH OF CONTRACT.—Sections 6101, 6103, 

9 and 6304 of this title do not apply to the procurement of property or 

10 services made by an executive agency pursuant to this division. How11 ever, when this division is made inapplicable by any law, sections 6101 

12 and 6103 of this title apply in the absence of authority conferred by 

13 statute to procure without advertising or without regard to section 

14 6101 of this title. A law that authorizes an executive agency (other 

15 than an executive agency exempted from this division by this sub16 section) to procure property or services without advertising or without 

17 regard to section 6101 of this title is deemed to authorize the procure18 ment pursuant to the provisions of this division relating to procedures 

19 other than sealed-bid procedures. 

20 § 3102. Delegation and assignment of powers, functions, and 

21 responsibilities 

22 (a) IN GENERAL.—Except to the extent expressly prohibited by another 

23 law, the head of an executive agency may delegate to another officer or offi24 cial of that agency any power under this division. 

25 (b) PROCUREMENTS FOR OR WITH ANOTHER AGENCY.—Subject to sub26 section (a), to facilitate the procurement of property and services covered 

27 by this division by an executive agency for another executive agency, and 

28 to facilitate joint procurement by executive agencies— 

29 (1) the head of an executive agency may delegate functions and as30 sign responsibilities relating to procurement to any officer or employee 

31 within the agency; 

32 (2) the heads of 2 or more executive agencies, consistent with section 

33 1535 of title 31 and regulations prescribed under section 1074 of the 

34 Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 

35 31 U.S.C. 1535 note), may by agreement delegate procurement func36 tions and assign procurement responsibilities from one executive agency 

37 to another of those executive agencies or to an officer or civilian em38 ployee of another of those executive agencies; and 

39 (3) the heads of 2 or more executive agencies may establish joint or 

40 combined offices to exercise procurement functions and responsibilities. 


hsrobinson on PROD1PC76 with BILLS
85 

HR 1107 RH 

1 § 3103. Acquisition programs 

2 (a) CONGRESSIONAL POLICY.—It is the policy of Congress that the head 

3 of each executive agency should achieve, on average, 90 percent of the cost, 

4 performance, and schedule goals established for major acquisition programs 

5 of the agency. 

6 (b) ESTABLISHMENT OF GOALS.— 

7 (1) BY HEAD OF EXECUTIVE AGENCY.—The head of each executive 

8 agency shall approve or define the cost, performance, and schedule 

9 goals for major acquisition programs of the agency. 

10 (2) BY CHIEF FINANCIAL OFFICER.—The chief financial officer of an 

11 executive agency shall evaluate the cost goals proposed for each major 

12 acquisition program of the agency. 

13 (c) IDENTIFICATION OF NONCOMPLIANT PROGRAMS.—When it is nec14 essary to implement the policy set out in subsection (a), the head of an ex15 ecutive agency shall— 

16 (1) determine whether there is a continuing need for programs that 

17 are significantly behind schedule, over budget, or not in compliance 

18 with performance or capability requirements; and 

19 (2) identify suitable actions to be taken, including termination, with 

20 respect to those programs. 

21 § 3104. Small business concerns 

22 It is the policy of Congress that a fair proportion of the total purchases 

23 and contracts for property and services for the Federal Government shall 

24 be placed with small business concerns. 

25 § 3105. New contracts and grants and merit-based selection 

26 procedures 

27 (a) CONGRESSIONAL POLICY.—It is the policy of Congress that— 

28 (1) an executive agency should not be required by legislation to 

29 award— 

30 (A) a new contract to a specific non-Federal Government entity; 

31 or 

32 (B) a new grant for research, development, test, or evaluation 

33 to a non-Federal Government entity; and 

34 (2) a program, project, or technology identified in legislation be pro35 cured or awarded through merit-based selection procedures. 

36 (b) NEW CONTRACT AND NEW GRANT DESCRIBED.—For purposes of 

37 this section— 

38 (1) a contract is a new contract unless the work provided for in the 

39 contract is a continuation of the work performed by the specified entity 

40 under a prior contract; and 


hsrobinson on PROD1PC76 with BILLS
86 

HR 1107 RH 

1 (2) a grant is a new grant unless the work provided for in the grant 

2 is a continuation of the work performed by the specified entity under 

3 a prior grant. 

4 (c) REQUIREMENTS FOR AWARDING NEW CONTRACT OR NEW GRANT.— 

5 A provision of law may not be construed as requiring a new contract or a 

6 new grant to be awarded to a specified non-Federal Government entity un7 less the provision of law specifically— 

8 (1) refers to this section; 

9 (2) identifies the particular non-Federal Government entity involved; 

10 and 

11 (3) states that the award to that entity is required by the provision 

12 of law in contravention of the policy set forth in subsection (a). 

13 (d) EXCEPTION.—This section does not apply to a contract or grant that 

14 calls on the National Academy of Sciences to investigate, examine, or experi15 ment on a subject of science or art of significance to an executive agency 

16 and to report on those matters to Congress or an agency of the Federal 

17 Government. 

18 § 3106. Erection, repair, or furnishing of public buildings 

19 and improvements not authorized, and certain 

20 contracts not permitted, by this division 

21 This division does not— 

22 (1) authorize the erection, repair, or furnishing of a public building 

23 or public improvement; or 

24 (2) permit a contract for the construction or repair of a building, 

25 road, sidewalk, sewer, main, or similar item using procedures other 

26 than sealed-bid procedures under section 3301(b)(1)(A) of this title if 

27 the conditions set forth in section 3301(b)(1)(A) of this title apply or 

28 the contract is to be performed outside the United States. 

29 CHAPTER 33—PLANNING AND SOLICITATION 

Sec. 

3301. Full and open competition. 

3302. Requirements for purchase of property and services pursuant to multiple award contracts. 

3303. Exclusion of particular source or restriction of solicitation to small business concerns. 

3304. Use of noncompetitive procedures. 

3305. Simplified procedures for small purchases. 

3306. Planning and solicitation requirements. 

3307. Preference for commercial items. 

3308. Planning for future competition in contracts for major systems. 

3309. Design-build selection procedures. 

3310. Quantities to order. 

3311. Qualification requirement. 

30 § 3301. Full and open competition 

31 (a) IN GENERAL.—Except as provided in sections 3303, 3304(a), and 

32 3305 of this title and except in the case of procurement procedures otherVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00086 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
87 

HR 1107 RH 

1 wise expressly authorized by statute, an executive agency in conducting a 

2 procurement for property or services shall— 

3 (1) obtain full and open competition through the use of competitive 

4 procedures in accordance with the requirements of this division and the 

5 Federal Acquisition Regulation; and 

6 (2) use the competitive procedure or combination of competitive pro7 cedures that is best suited under the circumstances of the procurement. 

8 (b) APPROPRIATE COMPETITIVE PROCEDURES.— 

9 (1) USE OF SEALED BIDS.—In determining the competitive proce10 dures appropriate under the circumstance, an executive agency shall— 

11 (A) solicit sealed bids if— 

12 (i) time permits the solicitation, submission, and evaluation 

13 of sealed bids; 

14 (ii) the award will be made on the basis of price and other 

15 price-related factors; 

16 (iii) it is not necessary to conduct discussions with the re17 sponding sources about their bids; and 

18 (iv) there is a reasonable expectation of receiving more 

19 than one sealed bid; or 

20 (B) request competitive proposals if sealed bids are not appro21 priate under subparagraph (A). 

22 (2) SEALED BID NOT REQUIRED.—Paragraph (1)(A) does not re23 quire the use of sealed-bid procedures in cases in which section 204(e) 

24 of title 23 applies. 

25 (c) EFFICIENT FULFILLMENT OF GOVERNMENT REQUIREMENTS.—The 

26 Federal Acquisition Regulation shall ensure that the requirement to obtain 

27 full and open competition is implemented in a manner that is consistent 

28 with the need to efficiently fulfill the Federal Government’s requirements. 

29 § 3302. Requirements for purchase of property and services 

30 pursuant to multiple award contracts 

31 (a) DEFINITIONS.—In this section: 

32 (1) EXECUTIVE AGENCY.— The term ‘‘executive agency’’ has the 

33 same meaning given in section 133 of this title. 

34 (2) INDIVIDUAL PURCHASE.—The term ‘‘individual purchase’’ means 

35 a task order, delivery order, or other purchase. 

36 (3) MULTIPLE AWARD CONTRACT.—The term ‘‘multiple award con37 tract’’ means— 

38 (A) a contract that is entered into by the Administrator of Gen39 eral Services under the multiple award schedule program referred 

40 to in section 2302(2)(C) of title 10; 


hsrobinson on PROD1PC76 with BILLS
88 

HR 1107 RH 

1 (B) a multiple award task order contract that is entered into 

2 under the authority of sections 2304a to 2304d of title 10, or 

3 chapter 41 of this title; and 

4 (C) any other indefinite delivery, indefinite quantity contract 

5 that is entered into by the head of an executive agency with 2 or 

6 more sources pursuant to the same solicitation. 

7 (4) SOLE SOURCE TASK OR DELIVERY ORDER.—The term ‘‘sole 

8 source task or delivery order’’ means any order that does not follow 

9 the competitive procedures in paragraph (2) or (3) of subsection (c). 

10 (b) REGULATIONS REQUIRED.—The Federal Acquisition Regulation shall 

11 require enhanced competition in the purchase of property and services by 

12 all executive agencies pursuant to multiple award contracts. 

13 (c) CONTENT OF REGULATIONS.— 

14 (1) IN GENERAL.—The regulations required by subsection (b) shall 

15 provide that each individual purchase of property or services in excess 

16 of the simplified acquisition threshold that is made under a multiple 

17 award contract shall be made on a competitive basis unless a con18 tracting officer— 

19 (A) waives the requirement on the basis of a determination 

20 that— 

21 (i) one of the circumstances described in paragraphs (1) to 

22 (4) of section 4106(c) of this title or section 2304c(b) of title 

23 10 applies to the individual purchase; or 

24 (ii) a law expressly authorizes or requires that the purchase 

25 be made from a specified source; and 

26 (B) justifies the determination in writing. 

27 (2) COMPETITIVE BASIS PROCEDURES.—For purposes of this sub28 section, an individual purchase of property or services is made on a 

29 competitive basis only if it is made pursuant to procedures that— 

30 (A) require fair notice of the intent to make that purchase (in31 cluding a description of the work to be performed and the basis 

32 on which the selection will be made) to be provided to all contrac33 tors offering the property or services under the multiple award 

34 contract; and 

35 (B) afford all contractors responding to the notice a fair oppor36 tunity to make an offer and have that offer fairly considered by 

37 the official making the purchase. 

38 (3) EXCEPTION TO NOTICE REQUIREMENT.— 

39 (A) IN GENERAL.—Notwithstanding paragraph (2), and subject 

40 to subparagraph (B), notice may be provided to fewer than all 

41 contractors offering the property or services under a multiple 


hsrobinson on PROD1PC76 with BILLS
89 

HR 1107 RH 

1 award contract as described in subsection (a)(3)(A) if notice is 

2 provided to as many contractors as practicable. 

3 (B) LIMITATION ON EXCEPTION.—A purchase may not be made 

4 pursuant to a notice that is provided to fewer than all contractors 

5 under subparagraph (A) unless— 

6 (i) offers were received from at least 3 qualified contrac7 tors; or 

8 (ii) a contracting officer of the executive agency determines 

9 in writing that no additional qualified contractors were able 

10 to be identified despite reasonable efforts to do so. 

11 (d) PUBLIC NOTICE REQUIREMENTS RELATED TO SOLE SOURCE TASK

12 OR DELIVERY ORDERS.— 

13 (1) PUBLIC NOTICE REQUIRED.—The Federal Acquisition Regulation 

14 shall require the head of each executive agency to— 

15 (A) publish on FedBizOpps notice of all sole source task or de16 livery orders in excess of the simplified acquisition threshold that 

17 are placed against multiple award contracts not later than 14 days 

18 after the orders are placed, except in the event of extraordinary 

19 circumstances or classified orders; and 

20 (B) disclose the determination required by subsection (c)(1) re21 lated to sole source task or delivery orders in excess of the sim22 plified acquisition threshold placed against multiple award con23 tracts through the same mechanism and to the same extent as the 

24 disclosure of documents containing a justification and approval re25 quired by section 2304(f)(1) of title 10 and section 3304(e)(1) of 

26 this title, except in the event of extraordinary circumstances or 

27 classified orders. 

28 (2) EXEMPTION.—This subsection does not require the public avail29 ability of information that is exempt from public disclosure under sec30 tion 552(b) of title 5. 

31 (e) APPLICABILITY.—The regulations required by subsection (b) shall 

32 apply to all individual purchases of property or services that are made under 

33 multiple award contracts on or after the effective date of the regulations, 

34 without regard to whether the multiple award contracts were entered into 

35 before, on, or after the effective date. 

36 § 3303. Exclusion of particular source or restriction of solici37 tation to small business concerns 

38 (a) EXCLUSION OF PARTICULAR SOURCE.— 

39 (1) CRITERIA FOR EXCLUSION.—An executive agency may provide 

40 for the procurement of property or services covered by section 3301 of 

41 this title using competitive procedures but excluding a particular source 


hsrobinson on PROD1PC76 with BILLS
90 

HR 1107 RH 

1 to establish or maintain an alternative source of supply for that prop2 erty or service if the agency head determines that to do so would— 

3 (A) increase or maintain competition and likely result in re4 duced overall cost for the procurement, or for an anticipated pro5 curement, of the property or services; 

6 (B) be in the interest of national defense in having a facility 

7 (or a producer, manufacturer, or other supplier) available for fur8 nishing the property or service in case of a national emergency or 

9 industrial mobilization; 

10 (C) be in the interest of national defense in establishing or 

11 maintaining an essential engineering, research, or development ca12 pability to be provided by an educational or other nonprofit insti13 tution or a Federally funded research and development center; 

14 (D) ensure the continuous availability of a reliable source of 

15 supply of the property or service; 

16 (E) satisfy projected needs for the property or service deter17 mined on the basis of a history of high demand for the property 

18 or service; or 

19 (F) satisfy a critical need for medical, safety, or emergency sup20 plies. 

21 (2) DETERMINATION FOR CLASS DISALLOWED.—A determination 

22 under paragraph (1) may not be made for a class of purchases or con23 tracts. 

24 (b) EXCLUSION OF OTHER THAN SMALL BUSINESS CONCERNS.—An ex25 ecutive agency may provide for the procurement of property or services cov26 ered by section 3301 of this title using competitive procedures, but exclud27 ing other than small business concerns in furtherance of sections 9 and 15 

28 of the Small Business Act (15 U.S.C. 638, 644). 

29 (c) NONAPPLICATION OF JUSTIFICATION AND APPROVAL REQUIRE30 MENTS.—A contract awarded pursuant to the competitive procedures re31 ferred to in subsections (a) and (b) is not subject to the justification and 

32 approval required by section 3304(e)(1) of this title. 

33 § 3304. Use of noncompetitive procedures 

34 (a) WHEN NONCOMPETITIVE PROCEDURES MAY BE USED.—An execu35 tive agency may use procedures other than competitive procedures only 

36 when— 

37 (1) the property or services needed by the executive agency are avail38 able from only one responsible source and no other type of property 

39 or services will satisfy the needs of the executive agency; 

40 (2) the executive agency’s need for the property or services is of such 

41 an unusual and compelling urgency that the Federal Government would 


hsrobinson on PROD1PC76 with BILLS
91 

HR 1107 RH 

1 be seriously injured unless the executive agency is permitted to limit 

2 the number of sources from which it solicits bids or proposals; 

3 (3) it is necessary to award the contract to a particular source— 

4 (A) to maintain a facility, producer, manufacturer, or other sup5 plier available for furnishing property or services in case of a na6 tional emergency or to achieve industrial mobilization; 

7 (B) to establish or maintain an essential engineering, research, 

8 or development capability to be provided by an educational or 

9 other nonprofit institution or a Federally funded research and de10 velopment center; 

11 (C) to procure the services of an expert for use, in any litigation 

12 or dispute (including any reasonably foreseeable litigation or dis13 pute) involving the Federal Government, in any trial, hearing, or 

14 proceeding before a court, administrative tribunal, or agency, 

15 whether or not the expert is expected to testify; or 

16 (D) to procure the services of an expert or neutral for use in 

17 any part of an alternative dispute resolution or negotiated rule18 making process, whether or not the expert is expected to testify; 

19 (4) the terms of an international agreement or treaty between the 

20 Federal Government and a foreign government or an international or21 ganization, or the written directions of a foreign government reimburs22 ing the executive agency for the cost of the procurement of the prop23 erty or services for that government, have the effect of requiring the 

24 use of procedures other than competitive procedures; 

25 (5) subject to section 3105 of this title, a statute expressly author26 izes or requires that the procurement be made through another execu27 tive agency or from a specified source, or the agency’s need is for a 

28 brand-name commercial item for authorized resale; 

29 (6) the disclosure of the executive agency’s needs would compromise 

30 the national security unless the agency is permitted to limit the number 

31 of sources from which it solicits bids or proposals; or 

32 (7) the head of the executive agency (who may not delegate the au33 thority under this paragraph)— 

34 (A) determines that it is necessary in the public interest to use 

35 procedures other than competitive procedures in the particular 

36 procurement concerned; and 

37 (B) notifies Congress in writing of that determination not less 

38 than 30 days before the award of the contract. 

39 (b) PROPERTY OR SERVICES DEEMED AVAILABLE FROM ONLY ONE

40 SOURCE.—For the purposes of subsection (a)(1), in the case of— 


hsrobinson on PROD1PC76 with BILLS
92 

HR 1107 RH 

1 (1) a contract for property or services to be awarded on the basis 

2 of acceptance of an unsolicited research proposal, the property or serv3 ices are deemed to be available from only one source if the source has 

4 submitted an unsolicited research proposal that demonstrates a unique 

5 and innovative concept, the substance of which is not otherwise avail6 able to the Federal Government and does not resemble the substance 

7 of a pending competitive procurement; or 

8 (2) a follow-on contract for the continued development or production 

9 of a major system or highly specialized equipment, the property may 

10 be deemed to be available only from the original source and may be 

11 procured through procedures other than competitive procedures when 

12 it is likely that award to a source other than the original source would 

13 result in— 

14 (A) substantial duplication of cost to the Federal Government 

15 that is not expected to be recovered through competition; or 

16 (B) unacceptable delay in fulfilling the executive agency’s needs. 

17 (c) PROPERTY OR SERVICES NEEDED WITH UNUSUAL AND COMPELLING

18 URGENCY.— 

19 (1) ALLOWABLE CONTRACT PERIOD.—The contract period of a con20 tract described in paragraph (2) that is entered into by an executive 

21 agency pursuant to the authority provided under subsection (a)(2)— 

22 (A) may not exceed the time necessary— 

23 (i) to meet the unusual and compelling requirements of the 

24 work to be performed under the contract; and 

25 (ii) for the executive agency to enter into another contract 

26 for the required goods or services through the use of competi27 tive procedures; and 

28 (B) may not exceed one year unless the head of the executive 

29 agency entering into the contract determines that exceptional cir30 cumstances apply. 

31 (2) APPLICABILITY OF ALLOWABLE CONTRACT PERIOD.—This sub32 section applies to any contract in an amount greater than the sim33 plified acquisition threshold. 

34 (d) OFFER REQUESTS TO POTENTIAL SOURCES.—An executive agency 

35 using procedures other than competitive procedures to procure property or 

36 services by reason of the application of paragraph (2) or (6) of subsection 

37 (a) shall request offers from as many potential sources as is practicable 

38 under the circumstances. 

39 (e) JUSTIFICATION FOR USE OF NONCOMPETITIVE PROCEDURES.— 


hsrobinson on PROD1PC76 with BILLS
93 

HR 1107 RH 

1 (1) PREREQUISITES FOR AWARDING CONTRACT.—Except as provided 

2 in paragraphs (3) and (4), an executive agency may not award a con3 tract using procedures other than competitive procedures unless— 

4 (A) the contracting officer for the contract justifies the use of 

5 those procedures in writing and certifies the accuracy and com6 pleteness of the justification; 

7 (B) the justification is approved, in the case of a contract for 

8 an amount— 

9 (i) exceeding $500,000 but equal to or less than 

10 $10,000,000, by the advocate for competition for the pro11 curing activity (without further delegation) or by an official 

12 referred to in clause (ii) or (iii); 

13 (ii) exceeding $10,000,000 but equal to or less than 

14 $50,000,000, by the head of the procuring activity or by a 

15 delegate who, if a member of the armed forces, is a general 

16 or flag officer or, if a civilian, is serving in a position in which 

17 the individual is entitled to receive the daily equivalent of the 

18 maximum annual rate of basic pay payable under section 

19 5376 of title 5 (or in a comparable or higher position under 

20 another schedule); or 

21 (iii) exceeding $50,000,000, by the senior procurement ex22 ecutive of the agency designated pursuant to section 1702(c) 

23 of this title (without further delegation); and 

24 (C) any required notice has been published with respect to the 

25 contract pursuant to section 1708 of this title and the executive 

26 agency has considered all bids or proposals received in response 

27 to that notice. 

28 (2) ELEMENTS OF JUSTIFICATION.—The justification required by 

29 paragraph (1)(A) shall include— 

30 (A) a description of the agency’s needs; 

31 (B) an identification of the statutory exception from the re32 quirement to use competitive procedures and a demonstration, 

33 based on the proposed contractor’s qualifications or the nature of 

34 the procurement, of the reasons for using that exception; 

35 (C) a determination that the anticipated cost will be fair and 

36 reasonable; 

37 (D) a description of the market survey conducted or a state38 ment of the reasons a market survey was not conducted; 

39 (E) a listing of any sources that expressed in writing an interest 

40 in the procurement; and 


hsrobinson on PROD1PC76 with BILLS
94 

HR 1107 RH 

1 (F) a statement of any actions the agency may take to remove 

2 or overcome a barrier to competition before a subsequent procure3 ment for those needs. 

4 (3) JUSTIFICATION ALLOWED AFTER CONTRACT AWARDED.—In the 

5 case of a procurement permitted by subsection (a)(2), the justification 

6 and approval required by paragraph (1) may be made after the con7 tract is awarded. 

8 (4) JUSTIFICATION NOT REQUIRED.—The justification and approval 

9 required by paragraph (1) are not required if— 

10 (A) a statute expressly requires that the procurement be made 

11 from a specified source; 

12 (B) the agency’s need is for a brand-name commercial item for 

13 authorized resale; 

14 (C) the procurement is permitted by subsection (a)(7); or 

15 (D) the procurement is conducted under chapter 85 of this title 

16 or section 8(a) of the Small Business Act (15 U.S.C. 637(a)). 

17 (5) RESTRICTIONS ON EXECUTIVE AGENCIES.— 

18 (A) CONTRACTS AND PROCUREMENT OF PROPERTY OR SERV19 ICES.—In no case may an executive agency— 

20 (i) enter into a contract for property or services using pro21 cedures other than competitive procedures on the basis of the 

22 lack of advance planning or concerns related to the amount 

23 available to the agency for procurement functions; or 

24 (ii) procure property or services from another executive 

25 agency unless the other executive agency complies fully with 

26 the requirements of this division in its procurement of the 

27 property or services. 

28 (B) ADDITIONAL RESTRICTION.—The restriction set out in sub29 paragraph (A)(ii) is in addition to any other restriction provided 

30 by law. 

31 (f) PUBLIC AVAILABILITY OF JUSTIFICATION AND APPROVAL REQUIRED

32 FOR USING NONCOMPETITIVE PROCEDURES.— 

33 (1) TIME REQUIREMENT.— 

34 (A) WITHIN 14 DAYS AFTER CONTRACT AWARD.—Except as pro35 vided in subparagraph (B), in the case of a procurement permitted 

36 by subsection (a), the head of an executive agency shall make pub37 licly available, within 14 days after the award of the contract, the 

38 documents containing the justification and approval required by 

39 subsection (e)(1) with respect to the procurement. 


hsrobinson on PROD1PC76 with BILLS
95 

HR 1107 RH 

1 (B) WITHIN 30 DAYS AFTER CONTRACT AWARD.—In the case of 

2 a procurement permitted by subsection (a)(2), subparagraph (A) 

3 shall be applied by substituting ‘‘30 days’’ for ‘‘14 days’’. 

4 (2) AVAILABILITY ON WEBSITES.—The documents referred to in sub5 paragraph (A) of paragraph (1) shall be made available on the website 

6 of the agency and through a Government-wide website selected by the 

7 Administrator. 

8 (3) EXCEPTION TO AVAILABILITY AND APPROVAL REQUIREMENT.— 

9 This subsection does not require the public availability of information 

10 that is exempt from public disclosure under section 552(b) of title 5. 

11 § 3305. Simplified procedures for small purchases 

12 (a) AUTHORIZATION.—To promote efficiency and economy in contracting 

13 and to avoid unnecessary burdens for agencies and contractors, the Federal 

14 Acquisition Regulation shall provide for special simplified procedures for 

15 purchases of property and services for amounts— 

16 (1) not greater than the simplified acquisition threshold; and 

17 (2) greater than the simplified acquisition threshold but not greater 

18 than $5,000,000 for which the contracting officer reasonably expects, 

19 based on the nature of the property or services sought and on market 

20 research, that offers will include only commercial items. 

21 (b) LEASEHOLD INTERESTS IN REAL PROPERTY.—The Administrator of 

22 General Services shall prescribe regulations that provide special simplified 

23 procedures for acquisitions of leasehold interests in real property at rental 

24 rates that do not exceed the simplified acquisition threshold. The rental rate 

25 under a multiyear lease does not exceed the simplified acquisition threshold 

26 if the average annual amount of the rent payable for the period of the lease 

27 does not exceed the simplified acquisition threshold. 

28 (c) PROHIBITION ON DIVIDING CONTRACTS.—A proposed purchase or 

29 contract for an amount above the simplified acquisition threshold may not 

30 be divided into several purchases or contracts for lesser amounts to use the 

31 simplified procedures required by subsection (a). 

32 (d) PROMOTION OF COMPETITION.—In using the simplified procedures, 

33 an executive agency shall promote competition to the maximum extent prac34 ticable. 

35 (e) COMPLIANCE WITH SPECIAL REQUIREMENTS OF FEDERAL ACQUISI36 TION REGULATION.—An executive agency shall comply with the Federal Ac37 quisition Regulation provisions referred to in section 1901(e) of this title. 

38 § 3306. Planning and solicitation requirements 

39 (a) PLANNING AND SPECIFICATIONS.— 

40 (1) PREPARING FOR PROCUREMENT.—In preparing for the procure41 ment of property or services, an executive agency shall— 


hsrobinson on PROD1PC76 with BILLS
96 

HR 1107 RH 

1 (A) specify its needs and solicit bids or proposals in a manner 

2 designed to achieve full and open competition for the procurement; 

3 (B) use advance procurement planning and market research; 

4 and 

5 (C) develop specifications in the manner necessary to obtain full 

6 and open competition with due regard to the nature of the prop7 erty or services to be acquired. 

8 (2) REQUIREMENTS OF SPECIFICATIONS.—Each solicitation under 

9 this division shall include specifications that— 

10 (A) consistent with this division, permit full and open competi11 tion; and 

12 (B) include restrictive provisions or conditions only to the extent 

13 necessary to satisfy the needs of the executive agency or as au14 thorized by law. 

15 (3) TYPES OF SPECIFICATIONS.—For the purposes of paragraphs (1) 

16 and (2), the type of specification included in a solicitation shall depend 

17 on the nature of the needs of the executive agency and the market 

18 available to satisfy those needs. Subject to those needs, specifications 

19 may be stated in terms of— 

20 (A) function, so that a variety of products or services may qual21 ify; 

22 (B) performance, including specifications of the range of accept23 able characteristics or of the minimum acceptable standards; or 

24 (C) design requirements. 

25 (b) CONTENTS OF SOLICITATION.—In addition to the specifications de26 scribed in subsection (a), each solicitation for sealed bids or competitive pro27 posals (other than for a procurement for commercial items using special 

28 simplified procedures or a purchase for an amount not greater than the sim29 plified acquisition threshold) shall at a minimum include— 

30 (1) a statement of— 

31 (A) all significant factors and significant subfactors that the ex32 ecutive agency reasonably expects to consider in evaluating sealed 

33 bids (including price) or competitive proposals (including cost or 

34 price, cost-related or price-related factors and subfactors, and 

35 noncost-related or nonprice-related factors and subfactors); and 

36 (B) the relative importance assigned to each of those factors 

37 and subfactors; and 

38 (2)(A) in the case of sealed bids— 

39 (i) a statement that sealed bids will be evaluated without discus40 sions with the bidders; and 

41 (ii) the time and place for the opening of the sealed bids; or 


hsrobinson on PROD1PC76 with BILLS
97 

HR 1107 RH 

1 (B) in the case of competitive proposals— 

2 (i) either a statement that the proposals are intended to be eval3 uated with, and the award made after, discussions with the 

4 offerors, or a statement that the proposals are intended to be eval5 uated, and the award made, without discussions with the offerors 

6 (other than discussions conducted for the purpose of minor clari7 fication) unless discussions are determined to be necessary; and 

8 (ii) the time and place for submission of proposals. 

9 (c) EVALUATION FACTORS.— 

10 (1) IN GENERAL.—In prescribing the evaluation factors to be in11 cluded in each solicitation for competitive proposals, an executive agen12 cy shall— 

13 (A) establish clearly the relative importance assigned to the 

14 evaluation factors and subfactors, including the quality of the 

15 product or services to be provided (including technical capability, 

16 management capability, prior experience, and past performance of 

17 the offeror); 

18 (B) include cost or price to the Federal Government as an eval19 uation factor that must be considered in the evaluation of pro20 posals; and 

21 (C) disclose to offerors whether all evaluation factors other than 

22 cost or price, when combined, are— 

23 (i) significantly more important than cost or price; 

24 (ii) approximately equal in importance to cost or price; or 

25 (iii) significantly less important than cost or price. 

26 (2) RESTRICTION ON IMPLEMENTING REGULATIONS.—Regulations 

27 implementing paragraph (1)(C) may not define the terms ‘‘significantly 

28 more important’’ and ‘‘significantly less important’’ as specific numeric 

29 weights that would be applied uniformly to all solicitations or a class 

30 of solicitations. 

31 (d) ADDITIONAL INFORMATION IN SOLICITATION.—This section does not 

32 prohibit an executive agency from— 

33 (1) providing additional information in a solicitation, including nu34 meric weights for all evaluation factors and subfactors on a case-by35 case basis; or 

36 (2) stating in a solicitation that award will be made to the offeror 

37 that meets the solicitation’s mandatory requirements at the lowest cost 

38 or price. 

39 (e) LIMITATION ON EVALUATION OF PURCHASE OPTIONS.—An executive 

40 agency, in issuing a solicitation for a contract to be awarded using sealed 

41 bid procedures, may not include in the solicitation a clause providing for the 


hsrobinson on PROD1PC76 with BILLS
98 

HR 1107 RH 

1 evaluation of prices for options to purchase additional property or services 

2 under the contract unless the executive agency has determined that there 

3 is a reasonable likelihood that the options will be exercised. 

4 (f) AUTHORIZATION OF TELECOMMUTING FOR FEDERAL CONTRAC5 TORS.— 

6 (1) DEFINITION.—In this subsection, the term ‘‘executive agency’’ 

7 has the meaning given that term in section 133 of this title. 

8 (2) FEDERAL ACQUISITION REGULATION TO ALLOW TELECOM9 MUTING.—The Federal Acquisition Regulation issued in accordance 

10 with sections 1121(b) and 1303(a)(1) of this title shall permit telecom11 muting by employees of Federal Government contractors in the per12 formance of contracts entered into with executive agencies. 

13 (3) SCOPE OF ALLOWANCE.—The Federal Acquisition Regulation at 

14 a minimum shall provide that a solicitation for the acquisition of prop15 erty or services may not set forth any requirement or evaluation cri16 teria that would— 

17 (A) render an offeror ineligible to enter into a contract on the 

18 basis of the inclusion of a plan of the offeror to allow the offeror’s 

19 employees to telecommute, unless the contracting officer concerned 

20 first determines that the requirements of the agency, including se21 curity requirements, cannot be met if telecommuting is allowed 

22 and documents in writing the basis for the determination; or 

23 (B) reduce the scoring of an offer on the basis of the inclusion 

24 in the offer of a plan of the offeror to allow the offeror’s employ25 ees to telecommute, unless the contracting officer concerned first 

26 determines that the requirements of the agency, including security 

27 requirements, would be adversely impacted if telecommuting is al28 lowed and documents in writing the basis for the determination. 

29 § 3307. Preference for commercial items 

30 (a) RELATIONSHIP OF PROVISIONS OF LAW TO PROCUREMENT OF COM31 MERCIAL ITEMS.— 

32 (1) THIS DIVISION.—Unless otherwise specifically provided, all other 

33 provisions in this division also apply to the procurement of commercial 

34 items. 

35 (2) LAWS LISTED IN FEDERAL ACQUISITION REGULATION.—A con36 tract for the procurement of a commercial item entered into by the 

37 head of an executive agency is not subject to a law properly listed in 

38 the Federal Acquisition Regulation pursuant to section 1906 of this 

39 title. 

40 (b) PREFERENCE.—The head of each executive agency shall ensure that, 

41 to the maximum extent practicable— 


hsrobinson on PROD1PC76 with BILLS
99 

HR 1107 RH 

1 (1) requirements of the executive agency with respect to a procure2 ment of supplies or services are stated in terms of— 

3 (A) functions to be performed; 

4 (B) performance required; or 

5 (C) essential physical characteristics; 

6 (2) those requirements are defined so that commercial items or, to 

7 the extent that commercial items suitable to meet the executive agen8 cy’s needs are not available, nondevelopmental items other than com9 mercial items may be procured to fulfill those requirements; and 

10 (3) offerors of commercial items and nondevelopmental items other 

11 than commercial items are provided an opportunity to compete in any 

12 procurement to fill those requirements. 

13 (c) IMPLEMENTATION.—The head of each executive agency shall ensure 

14 that procurement officials in that executive agency, to the maximum extent 

15 practicable— 

16 (1) acquire commercial items or nondevelopmental items other than 

17 commercial items to meet the needs of the executive agency; 

18 (2) require that prime contractors and subcontractors at all levels 

19 under contracts of the executive agency incorporate commercial items 

20 or nondevelopmental items other than commercial items as components 

21 of items supplied to the executive agency; 

22 (3) modify requirements in appropriate cases to ensure that the re23 quirements can be met by commercial items or, to the extent that com24 mercial items suitable to meet the executive agency’s needs are not 

25 available, nondevelopmental items other than commercial items; 

26 (4) state specifications in terms that enable and encourage bidders 

27 and offerors to supply commercial items or, to the extent that commer28 cial items suitable to meet the executive agency’s needs are not avail29 able, nondevelopmental items other than commercial items in response 

30 to the executive agency solicitations; 

31 (5) revise the executive agency’s procurement policies, practices, and 

32 procedures not required by law to reduce any impediments in those 

33 policies, practices, and procedures to the acquisition of commercial 

34 items; and 

35 (6) require training of appropriate personnel in the acquisition of 

36 commercial items. 

37 (d) MARKET RESEARCH.— 

38 (1) WHEN TO BE USED.—The head of an executive agency shall con39 duct market research appropriate to the circumstances— 

40 (A) before developing new specifications for a procurement by 

41 that executive agency; and 


hsrobinson on PROD1PC76 with BILLS
100 

HR 1107 RH 

1 (B) before soliciting bids or proposals for a contract in excess 

2 of the simplified acquisition threshold. 

3 (2) USE OF RESULTS.—The head of an executive agency shall use 

4 the results of market research to determine whether commercial items 

5 or, to the extent that commercial items suitable to meet the executive 

6 agency’s needs are not available, nondevelopmental items other than 

7 commercial items are available that— 

8 (A) meet the executive agency’s requirements; 

9 (B) could be modified to meet the executive agency’s require10 ments; or 

11 (C) could meet the executive agency’s requirements if those re12 quirements were modified to a reasonable extent. 

13 (3) ONLY MINIMUM INFORMATION REQUIRED TO BE SUBMITTED.— 

14 In conducting market research, the head of an executive agency should 

15 not require potential sources to submit more than the minimum infor16 mation that is necessary to make the determinations required in para17 graph (2). 

18 (e) REGULATIONS.— 

19 (1) IN GENERAL.—The Federal Acquisition Regulation shall provide 

20 regulations to implement this section, sections 102, 103, 105, and 110 

21 of this title, and chapter 140 of title 10. 

22 (2) CONTRACT CLAUSES.— 

23 (A) DEFINITION.—In this paragraph, the term ‘‘subcontract’’ 

24 includes a transfer of commercial items between divisions, subsidi25 aries, or affiliates of a contractor or subcontractor. 

26 (B) LIST OF CLAUSES TO BE INCLUDED.—The regulations pre27 scribed under paragraph (1) shall contain a list of contract clauses 

28 to be included in contracts for the acquisition of commercial end 

29 items. To the maximum extent practicable, the list shall include 

30 only those contract clauses that are— 

31 (i) required to implement provisions of law or executive or32 ders applicable to acquisitions of commercial items or com33 mercial components; or 

34 (ii) determined to be consistent with standard commercial 

35 practice. 

36 (C) REQUIREMENTS OF PRIME CONTRACTOR.—The regulations 

37 shall provide that the Federal Government shall not require a 

38 prime contractor to apply to any of its divisions, subsidiaries, af39 filiates, subcontractors, or suppliers that are furnishing commer40 cial items any contract clause except those that are— 


hsrobinson on PROD1PC76 with BILLS
101 

HR 1107 RH 

1 (i) required to implement provisions of law or executive or2 ders applicable to subcontractors furnishing commercial items 

3 or commercial components; or 

4 (ii) determined to be consistent with standard commercial 

5 practice. 

6 (D) CLAUSES THAT MAY BE USED IN A CONTRACT.—To the 

7 maximum extent practicable, only the contract clauses listed pur8 suant to subparagraph (B) may be used in a contract, and only 

9 the contract clauses referred to in subparagraph (C) may be re10 quired to be used in a subcontract, for the acquisition of commer11 cial items or commercial components by or for an executive agen12 cy. 

13 (E) WAIVER OF CONTRACT CLAUSES.—The Federal Acquisition 

14 Regulation shall provide standards and procedures for waiving the 

15 use of contract clauses required pursuant to subparagraph (B), 

16 other than those required by law, including standards for deter17 mining the cases in which a waiver is appropriate. 

18 (3) MARKET ACCEPTANCE.— 

19 (A) REQUIREMENT OF OFFERORS.—The Federal Acquisition 

20 Regulation shall provide that under appropriate conditions the 

21 head of an executive agency may require offerors to demonstrate 

22 that the items offered— 

23 (i) have achieved commercial market acceptance or been 

24 satisfactorily supplied to an executive agency under current or 

25 recent contracts for the same or similar requirements; and 

26 (ii) otherwise meet the item description, specifications, or 

27 other criteria prescribed in the public notice and solicitation 

28 relating to the contract. 

29 (B) REGULATION TO PROVIDE GUIDANCE ON CRITERIA.—The 

30 Federal Acquisition Regulation shall provide guidance to ensure 

31 that the criteria for determining commercial market acceptance in32 clude the consideration of— 

33 (i) the minimum needs of the executive agency concerned; 

34 and 

35 (ii) the entire relevant commercial market, including small 

36 businesses. 

37 (4) PROVISIONS RELATING TO TYPES OF CONTRACTS.— 

38 (A) TYPES OF CONTRACTS THAT MAY BE USED.—The Federal 

39 Acquisition Regulation shall include, for acquisitions of commercial 

40 items— 


hsrobinson on PROD1PC76 with BILLS
102 

HR 1107 RH 

1 (i) a requirement that firm, fixed price contracts or fixed 

2 price with economic price adjustment contracts be used to the 

3 maximum extent practicable; 

4 (ii) a prohibition on use of cost type contracts; and 

5 (iii) subject to subparagraph (B), authority for use of a 

6 time-and-materials or labor-hour contract for the procurement 

7 of commercial services that are commonly sold to the general 

8 public through those contracts and are purchased by the pro9 curing agency on a competitive basis. 

10 (B) WHEN TIME-AND-MATERIALS OR LABOR-HOUR CONTRACT

11 MAY BE USED.—A time-and-materials or labor-hour contract may 

12 be used pursuant to the authority referred to in subparagraph 

13 (A)(iii)— 

14 (i) only for a procurement of commercial services in a cat15 egory of commercial services described in subparagraph (C); 

16 and 

17 (ii) only if the contracting officer for the procurement— 

18 (I) executes a determination and findings that no 

19 other contract type is suitable; 

20 (II) includes in the contract a ceiling price that the 

21 contractor exceeds at its own risk; and 

22 (III) authorizes a subsequent change in the ceiling 

23 price only on a determination, documented in the con24 tract file, that it is in the best interest of the procuring 

25 agency to change the ceiling price. 

26 (C) CATEGORIES OF COMMERCIAL SERVICES.—The categories of 

27 commercial services referred to in subparagraph (B) are as fol28 lows: 

29 (i) Commercial services procured for support of a commer30 cial item, as described in section 103(5) of this title. 

31 (ii) Any other category of commercial services that the Ad32 ministrator for Federal Procurement Policy designates in the 

33 Federal Acquisition Regulation for the purposes of this sub34 paragraph on the basis that— 

35 (I) the commercial services in the category are of a 

36 type of commercial services that are commonly sold to 

37 the general public through use of time-and-materials or 

38 labor-hour contracts; and 

39 (II) it would be in the best interests of the Federal 

40 Government to authorize use of time-and-materials or 


hsrobinson on PROD1PC76 with BILLS
103 

HR 1107 RH 

1 labor-hour contracts for purchases of the commercial 

2 services in the category. 

3 (5) CONTRACT QUALITY REQUIREMENTS.—Regulations prescribed 

4 under paragraph (1) shall include provisions that— 

5 (A) allow, to the maximum extent practicable, a contractor 

6 under a commercial items acquisition to use the existing quality 

7 assurance system of the contractor as a substitute for compliance 

8 with an otherwise applicable requirement for the Federal Govern9 ment to inspect or test the commercial items before the contrac10 tor’s tender of those items for acceptance by the Federal Govern11 ment; 

12 (B) require that, to the maximum extent practicable, the execu13 tive agency take advantage of warranties (including extended war14 ranties) offered by offerors of commercial items and use those 

15 warranties for the repair and replacement of commercial items; 

16 and 

17 (C) set forth guidance regarding the use of past performance of 

18 commercial items and sources as a factor in contract award deci19 sions. 

20 § 3308. Planning for future competition in contracts for 

21 major systems 

22 (a) DEVELOPMENT CONTRACT.— 

23 (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre24 paring a solicitation for the award of a development contract for a 

25 major system, the head of an agency shall consider requiring in the so26 licitation that an offeror include in its offer proposals described in 

27 paragraph (2). In determining whether to require the proposals, the 

28 head of the agency shall consider the purposes for which the system 

29 is being procured and the technology necessary to meet the system’s 

30 required capabilities. If the proposals are required, the head of the 

31 agency shall consider them in evaluating the offeror’s price. 

32 (2) CONTENTS OF PROPOSALS.—The proposals that the head of an 

33 agency is to consider requiring in a solicitation for the award of a de34 velopment contract are the following: 

35 (A) Proposals to incorporate in the design of the major system 

36 items that are currently available within the supply system of the 

37 Federal agency responsible for the major system, available else38 where in the national supply system, or commercially available 

39 from more than one source. 

40 (B) With respect to items that are likely to be required in sub41 stantial quantities during the system’s service life, proposals to inVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00103 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
104 

HR 1107 RH 

1 corporate in the design of the major system items that the Federal 

2 Government will be able to acquire competitively in the future. 

3 (b) PRODUCTION CONTRACT.— 

4 (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre5 paring a solicitation for the award of a production contract for a major 

6 system, the head of an agency shall consider requiring in the solicita7 tion that an offeror include in its offer proposals described in para8 graph (2). In determining whether to require the proposals, the head 

9 of the agency shall consider the purposes for which the system is being 

10 procured and the technology necessary to meet the system’s required 

11 capabilities. If the proposals are required, the head of the agency shall 

12 consider them in evaluating the offeror’s price. 

13 (2) CONTENT OF PROPOSALS.—The proposals that the head of an 

14 agency is to consider requiring in a solicitation for the award of a pro15 duction contract are proposals identifying opportunities to ensure that 

16 the Federal Government will be able to obtain on a competitive basis 

17 items procured in connection with the system that are likely to be re18 procured in substantial quantities during the service life of the system. 

19 Proposals submitted in response to this requirement may include the 

20 following: 

21 (A) Proposals to provide to the Federal Government the right 

22 to use technical data to be provided under the contract for com23 petitive reprocurement of the item, together with the cost to the 

24 Federal Government of acquiring the data and the right to use the 

25 data. 

26 (B) Proposals for the qualification or development of multiple 

27 sources of supply for the item. 

28 (c) CONSIDERATION OF FACTORS AS OBJECTIVES IN NEGOTIATIONS.— 

29 If the head of an agency is making a noncompetitive award of a develop30 ment contract or a production contract for a major system, the factors spec31 ified in subsections (a) and (b) to be considered in evaluating an offer for 

32 a contract may be considered as objectives in negotiating the contract to 

33 be awarded. 

34 § 3309. Design-build selection procedures 

35 (a) AUTHORIZATION.—Unless the traditional acquisition approach of de36 sign-bid-build established under sections 1101 to 1104 of title 40 or another 

37 acquisition procedure authorized by law is used, the head of an executive 

38 agency shall use the two-phase selection procedures authorized in this sec39 tion for entering into a contract for the design and construction of a public 

40 building, facility, or work when a determination is made under subsection 

41 (b) that the procedures are appropriate for use. 


hsrobinson on PROD1PC76 with BILLS
105 

HR 1107 RH 

1 (b) CRITERIA FOR USE.—A contracting officer shall make a determina2 tion whether two-phase selection procedures are appropriate for use for en3 tering into a contract for the design and construction of a public building, 

4 facility, or work when— 

5 (1) the contracting officer anticipates that 3 or more offers will be 

6 received for the contract; 

7 (2) design work must be performed before an offeror can develop a 

8 price or cost proposal for the contract; 

9 (3) the offeror will incur a substantial amount of expense in pre10 paring the offer; and 

11 (4) the contracting officer has considered information such as the 

12 following: 

13 (A) The extent to which the project requirements have been 

14 adequately defined. 

15 (B) The time constraints for delivery of the project. 

16 (C) The capability and experience of potential contractors. 

17 (D) The suitability of the project for use of the two-phase selec18 tion procedures. 

19 (E) The capability of the agency to manage the two-phase selec20 tion process. 

21 (F) Other criteria established by the agency. 

22 (c) PROCEDURES DESCRIBED.—Two-phase selection procedures consist of 

23 the following: 

24 (1) DEVELOPMENT OF SCOPE OF WORK STATEMENT.—The agency 

25 develops, either in-house or by contract, a scope of work statement for 

26 inclusion in the solicitation that defines the project and provides pro27 spective offerors with sufficient information regarding the Federal Gov28 ernment’s requirements (which may include criteria and preliminary de29 sign, budget parameters, and schedule or delivery requirements) to en30 able the offerors to submit proposals that meet the Federal Govern31 ment’s needs. If the agency contracts for development of the scope of 

32 work statement, the agency shall contract for architectural and engi33 neering services as defined by and in accordance with sections 1101 to 

34 1104 of title 40. 

35 (2) SOLICITATION OF PHASE-ONE PROPOSALS.—The contracting offi36 cer solicits phase-one proposals that— 

37 (A) include information on the offeror’s— 

38 (i) technical approach; and 

39 (ii) technical qualifications; and 

40 (B) do not include— 

41 (i) detailed design information; or 


hsrobinson on PROD1PC76 with BILLS
106 

HR 1107 RH 

1 (ii) cost or price information. 

2 (3) EVALUATION FACTORS.—The evaluation factors to be used in 

3 evaluating phase-one proposals are stated in the solicitation and include 

4 specialized experience and technical competence, capability to perform, 

5 past performance of the offeror’s team (including the architect-engineer 

6 and construction members of the team), and other appropriate factors, 

7 except that cost-related or price-related evaluation factors are not per8 mitted. Each solicitation establishes the relative importance assigned to 

9 the evaluation factors and subfactors that must be considered in the 

10 evaluation of phase-one proposals. The agency evaluates phase-one pro11 posals on the basis of the phase-one evaluation factors set forth in the 

12 solicitation. 

13 (4) SELECTION BY CONTRACTING OFFICER.— 

14 (A) NUMBER OF OFFERORS SELECTED AND WHAT IS TO BE

15 EVALUATED.—The contracting officer selects as the most highly 

16 qualified the number of offerors specified in the solicitation to pro17 vide the property or services under the contract and requests the 

18 selected offerors to submit phase-two competitive proposals that 

19 include technical proposals and cost or price information. Each so20 licitation establishes with respect to phase two— 

21 (i) the technical submission for the proposal, including de22 sign concepts or proposed solutions to requirements addressed 

23 within the scope of work, or both; and 

24 (ii) the evaluation factors and subfactors, including cost or 

25 price, that must be considered in the evaluations of proposals 

26 in accordance with subsections (b) to (d) of section 3306 of 

27 this title. 

28 (B) SEPARATE EVALUATIONS.—The contracting officer sepa29 rately evaluates the submissions described in clauses (i) and (ii) 

30 of subparagraph (A). 

31 (5) AWARDING OF CONTRACT.—The agency awards the contract in 

32 accordance with chapter 37 of this title. 

33 (d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE SELECTED

34 FOR PHASE-TWO REQUESTS FOR COMPETITIVE PROPOSALS.—A solicitation 

35 issued pursuant to the procedures described in subsection (c) shall state the 

36 maximum number of offerors that are to be selected to submit competitive 

37 proposals pursuant to subsection (c)(4). The maximum number specified in 

38 the solicitation shall not exceed 5 unless the agency determines with respect 

39 to an individual solicitation that a specified number greater than 5 is in the 

40 Federal Government’s interest and is consistent with the purposes and ob41 jectives of the two-phase selection process. 


hsrobinson on PROD1PC76 with BILLS
107 

HR 1107 RH 

1 (e) REQUIREMENT FOR GUIDANCE AND REGULATIONS.—The Federal Ac2 quisition Regulation shall include guidance— 

3 (1) regarding the factors that may be considered in determining 

4 whether the two-phase contracting procedures authorized by subsection 

5 (a) are appropriate for use in individual contracting situations; 

6 (2) regarding the factors that may be used in selecting contractors; 

7 and 

8 (3) providing for a uniform approach to be used Government-wide. 

9 § 3310. Quantities to order 

10 (a) FACTORS AFFECTING QUANTITY TO ORDER.—Each executive agency 

11 shall procure supplies in a quantity that— 

12 (1) will result in the total cost and unit cost most advantageous to 

13 the Federal Government, where practicable; and 

14 (2) does not exceed the quantity reasonably expected to be required 

15 by the agency. 

16 (b) OFFEROR’S OPINION OF QUANTITY.—Each solicitation for a contract 

17 for supplies shall, if practicable, include a provision inviting each offeror re18 sponding to the solicitation to state an opinion on whether the quantity of 

19 supplies proposed to be procured is economically advantageous to the Fed20 eral Government and, if applicable, to recommend a quantity that would be 

21 more economically advantageous to the Federal Government. Each rec22 ommendation shall include a quotation of the total price and the unit price 

23 for supplies procured in each recommended quantity. 

24 § 3311. Qualification requirement 

25 (a) DEFINITION.—In this section, the term ‘‘qualification requirement’’ 

26 means a requirement for testing or other quality assurance demonstration 

27 that must be completed by an offeror before award of a contract. 

28 (b) ACTIONS BEFORE ENFORCING QUALIFICATION REQUIREMENT.—Ex29 cept as provided in subsection (c), the head of an agency, before enforcing 

30 any qualification requirement, shall— 

31 (1) prepare a written justification stating the necessity for estab32 lishing the qualification requirement and specify why the qualification 

33 requirement must be demonstrated before contract award; 

34 (2) specify in writing and make available to a potential offeror on 

35 request all requirements that a prospective offeror, or its product, must 

36 satisfy to become qualified, with those requirements to be limited to 

37 those least restrictive to meet the purposes necessitating the establish38 ment of the qualification requirement; 

39 (3) specify an estimate of the cost of testing and evaluation likely 

40 to be incurred by a potential offeror to become qualified; 


hsrobinson on PROD1PC76 with BILLS
108 

HR 1107 RH 

1 (4) ensure that a potential offeror is provided, on request, a prompt 

2 opportunity to demonstrate at its own expense (except as provided in 

3 subsection (d)) its ability to meet the standards specified for qualifica4 tion using— 

5 (A) qualified personnel and facilities— 

6 (i) of the agency concerned; 

7 (ii) of another agency obtained through interagency agree8 ment; or 

9 (iii) under contract; or 

10 (B) other methods approved by the agency (including use of ap11 proved testing and evaluation services not provided under contract 

12 to the agency); 

13 (5) if testing and evaluation services are provided under contract to 

14 the agency for the purposes of paragraph (4), provide to the extent 

15 possible that those services be provided by a contractor that— 

16 (A) is not expected to benefit from an absence of additional 

17 qualified sources; and 

18 (B) is required in the contract to adhere to any restriction on 

19 technical data asserted by the potential offeror seeking qualifica20 tion; and 

21 (6) ensure that a potential offeror seeking qualification is promptly 

22 informed whether qualification is attained and, if not attained, is 

23 promptly furnished specific information about why qualification was 

24 not attained. 

25 (c) APPLICABILITY, WAIVER AUTHORITY, AND REFERRAL OF OFFERS.— 

26 (1) APPLICABILITY.—Subsection (b) does not apply to a qualification 

27 requirement established by statute prior to October 30, 1984. 

28 (2) WAIVER AUTHORITY.— 

29 (A) SUBMISSION OF DETERMINATION OF

30 UNREASONABLENESS.—Except as provided in subparagraph (C), if 

31 it is unreasonable to specify the standards for qualification that 

32 a prospective offeror or its product must satisfy, a determination 

33 to that effect shall be submitted to the advocate for competition 

34 of the procuring activity responsible for the purchase of the item 

35 subject to the qualification requirement. 

36 (B) AUTHORITY TO GRANT WAIVER.—After considering any 

37 comments of the advocate for competition reviewing the deter38 mination, the head of the procuring activity may waive the re39 quirements of paragraphs (2) to (5) of subsection (b) for up to 

40 2 years with respect to the item subject to the qualification re41 quirement. 


hsrobinson on PROD1PC76 with BILLS
109 

HR 1107 RH 

1 (C) NONAPPLICABILITY TO QUALIFIED PRODUCTS LIST.—Waiv2 er authority under this paragraph does not apply with respect to 

3 a qualified products list. 

4 (3) SUBMISSION AND CONSIDERATION OF OFFER NOT TO BE DE5 NIED.—A potential offeror may not be denied the opportunity to sub6 mit and have considered an offer for a contract solely because the po7 tential offeror has not been identified as meeting a qualification re8 quirement if the potential offeror can demonstrate to the satisfaction 

9 of the contracting officer that the potential offeror or its product meets 

10 the standards established for qualification or can meet those standards 

11 before the date specified for award of the contract. 

12 (4) REFERRAL TO SMALL BUSINESS ADMINISTRATION NOT RE13 QUIRED.—This subsection does not require the referral of an offer to 

14 the Small Business Administration pursuant to section 8(b)(7) of the 

15 Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral 

16 is a challenge by the offeror to either the validity of the qualification 

17 requirement or the offeror’s compliance with that requirement. 

18 (5) DELAY OF PROCUREMENT NOT REQUIRED.—The head of an 

19 agency need not delay a proposed procurement to comply with sub20 section (b) or to provide a potential offeror with an opportunity to dem21 onstrate its ability to meet the standards specified for qualification. 

22 (d) FEWER THAN 2 ACTUAL MANUFACTURERS.— 

23 (1) SOLICITATION AND TESTING OF ADDITIONAL SOURCES OR PROD24 UCTS.—If the number of qualified sources or qualified products avail25 able to compete actively for an anticipated future requirement is fewer 

26 than 2 actual manufacturers or the products of 2 actual manufactur27 ers, respectively, the head of the agency concerned shall— 

28 (A) publish notice periodically soliciting additional sources or 

29 products to seek qualification, unless the contracting officer deter30 mines that doing so would compromise national security; and 

31 (B) subject to paragraph (2), bear the cost of conducting the 

32 specified testing and evaluation (excluding the cost associated with 

33 producing the item or establishing the production, quality control, 

34 or other system to be tested and evaluated) for a small business 

35 concern or a product manufactured by a small business concern 

36 that has met the standards specified for qualification and that 

37 could reasonably be expected to compete for a contract for that 

38 requirement. 

39 (2) WHEN AGENCY MAY BEAR COST.—The head of the agency con40 cerned may bear the cost under paragraph (1)(B) only if the head of 

41 the agency determines that the additional qualified sources or products 


hsrobinson on PROD1PC76 with BILLS
110 

HR 1107 RH 

1 are likely to result in cost savings from increased competition for future 

2 requirements sufficient to offset (within a reasonable period of time 

3 considering the duration and dollar value of anticipated future require4 ments) the cost incurred by the agency. 

5 (3) CERTIFICATION REQUIRED.—The head of the agency shall re6 quire a prospective contractor requesting the Federal Government to 

7 bear testing and evaluation costs under paragraph (1)(B) to certify its 

8 status as a small business concern under section 3 of the Small Busi9 ness Act (15 U.S.C. 632). 

10 (e) EXAMINATION AND REVALIDATION OF QUALIFICATION REQUIRE11 MENT.—Within 7 years after the establishment of a qualification require12 ment, the need for the requirement shall be examined and the standards of 

13 the requirement revalidated in accordance with the requirements of sub14 section (b). This subsection does not apply in the case of a qualification re15 quirement for which a waiver is in effect under subsection (c)(2). 

16 (f) WHEN ENFORCEMENT OF QUALIFICATION REQUIREMENT NOT AL17 LOWED.—Except in an emergency as determined by the head of the agency, 

18 after the head of the agency determines not to enforce a qualification re19 quirement for a solicitation, the agency may not enforce the requirement un20 less the agency complies with the requirements of subsection (b). 

21 CHAPTER 35—TRUTHFUL COST AND 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. 

22 § 3501. General 

23 (a) DEFINITIONS.—In this chapter: 

24 (1) COMMERCIAL ITEM.—The term ‘‘commercial item’’ has the 

25 meaning provided the term by section 103 of this title. 

26 (2) COST OR PRICING DATA.—The term ‘‘cost or pricing data’’ 

27 means all facts that, as of the date of agreement on the price of a con28 tract (or the price of a contract modification) or, if applicable con29 sistent with section 3506(a)(2) of this title, another date agreed upon 

30 between the parties, a prudent buyer or seller would reasonably expect 

31 to affect price negotiations significantly. The term does not include in32 formation that is judgmental, but does include factual information from 

33 which a judgment was derived. 


hsrobinson on PROD1PC76 with BILLS
111 

HR 1107 RH 

1 (3) SUBCONTRACT.—The term ‘‘subcontract’’ includes a transfer of 

2 commercial items between divisions, subsidiaries, or affiliates of a con3 tractor or a subcontractor. 

4 (b) REGULATIONS.— 

5 (1) MINIMIZING ABUSE OF COMMERCIAL SERVICES ITEM AUTHOR6 ITY.—The Federal Acquisition Regulation shall ensure that services 

7 that are not offered and sold competitively in substantial quantities in 

8 the commercial marketplace, but are of a type offered and sold com9 petitively in substantial quantities in the commercial marketplace, may 

10 be treated as commercial items for purposes of this chapter only if the 

11 contracting officer determines in writing that the offeror has submitted 

12 sufficient information to evaluate, through price analysis, the reason13 ableness of the price for the services. 

14 (2) INFORMATION TO SUBMIT.—To the extent necessary to make a 

15 determination under paragraph (1), the contracting officer may request 

16 the offeror to submit— 

17 (A) prices paid for the same or similar commercial items under 

18 comparable terms and conditions by both government and com19 mercial customers; and 

20 (B) if the contracting officer determines that the information 

21 described in subparagraph (A) is not sufficient to determine the 

22 reasonableness of price, other relevant information regarding the 

23 basis for price or cost, including information on labor costs, mate24 rial costs, and overhead rates. 

25 § 3502. Required cost or pricing data and certification 

26 (a) WHEN REQUIRED.—The head of an executive agency shall require 

27 offerors, contractors, and subcontractors to make cost or pricing data avail28 able as follows: 

29 (1) OFFEROR FOR PRIME CONTRACT.—An offeror for a prime con30 tract under this division to be entered into using procedures other than 

31 sealed-bid procedures shall be required to submit cost or pricing data 

32 before the award of a contract if— 

33 (A) in the case of a prime contract entered into after October 

34 13, 1994, the price of the contract to the Federal Government is 

35 expected to exceed $500,000; and 

36 (B) in the case of a prime contract entered into on or before 

37 October 13, 1994, the price of the contract to the Federal Govern38 ment is expected to exceed $100,000. 

39 (2) CONTRACTOR.—The contractor for a prime contract under this 

40 division shall be required to submit cost or pricing data before the pric41 ing of a change or modification to the contract if— 


hsrobinson on PROD1PC76 with BILLS
112 

HR 1107 RH 

1 (A) in the case of a change or modification made to a prime 

2 contract referred to in paragraph (1)(A), the price adjustment is 

3 expected to exceed $500,000; 

4 (B) in the case of a change or modification made to a prime 

5 contract that was entered into on or before October 13, 1994, and 

6 that has been modified pursuant to subsection (f), the price ad7 justment is expected to exceed $500,000; and 

8 (C) in the case of a change or modification not covered by sub9 paragraph (A) or (B), the price adjustment is expected to exceed 

10 $100,000. 

11 (3) OFFEROR FOR SUBCONTRACT.—An offeror for a subcontract (at 

12 any tier) of a contract under this division shall be required to submit 

13 cost or pricing data before the award of the subcontract if the prime 

14 contractor and each higher-tier subcontractor have been required to 

15 make available cost or pricing data under this chapter and— 

16 (A) in the case of a subcontract under a prime contract referred 

17 to in paragraph (1)(A), the price of the subcontract is expected 

18 to exceed $500,000; 

19 (B) in the case of a subcontract entered into under a prime con20 tract that was entered into on or before October 13, 1994, and 

21 that has been modified pursuant to subsection (f), the price of the 

22 subcontract is expected to exceed $500,000; and 

23 (C) in the case of a subcontract not covered by subparagraph 

24 (A) or (B), the price of the subcontract is expected to exceed 

25 $100,000. 

26 (4) SUBCONTRACTOR.—The subcontractor for a subcontract covered 

27 by paragraph (3) shall be required to submit cost or pricing data before 

28 the pricing of a change or modification to the subcontract if— 

29 (A) in the case of a change or modification to a subcontract re30 ferred to in paragraph (3)(A) or (B), the price adjustment is ex31 pected to exceed $500,000; and 

32 (B) in the case of a change or modification to a subcontract re33 ferred to in paragraph (3)(C), the price adjustment is expected to 

34 exceed $100,000. 

35 (b) CERTIFICATION.—A person required, as an offeror, contractor, or 

36 subcontractor, to submit cost or pricing data under subsection (a) (or re37 quired by the head of the procuring activity concerned to submit the data 

38 under section 3504 of this title) shall be required to certify that, to the best 

39 of the person’s knowledge and belief, the cost or pricing data submitted are 

40 accurate, complete, and current. 


hsrobinson on PROD1PC76 with BILLS
113 

HR 1107 RH 

1 (c) TO WHOM SUBMITTED.—Cost or pricing data required to be sub2 mitted under subsection (a) (or under section 3504 of this title), and a cer3 tification required to be submitted under subsection (b), shall be sub4 mitted— 

5 (1) in the case of a submission by a prime contractor (or an offeror 

6 for a prime contract), to the contracting officer for the contract (or a 

7 designated representative of the contracting officer); or 

8 (2) in the case of a submission by a subcontractor (or an offeror for 

9 a subcontract), to the prime contractor. 

10 (d) APPLICATION OF CHAPTER.—Except as provided under section 3503 

11 of this title, this chapter applies to contracts entered into by the head of 

12 an executive agency on behalf of a foreign government. 

13 (e) SUBCONTRACTS NOT AFFECTED BY WAIVER.—A waiver of require14 ments for submission of certified cost or pricing data that is granted under 

15 section 3503(a)(3) of this title in the case of a contract or subcontract does 

16 not waive the requirement under subsection (a)(3) of this section for sub17 mission of cost or pricing data in the case of subcontracts under that con18 tract or subcontract unless the head of the procuring activity granting the 

19 waiver determines that the requirement under subsection (a)(3) of this sec20 tion should be waived in the case of those subcontracts and justifies in writ21 ing the reason for the determination. 

22 (f) MODIFICATIONS TO PRIOR CONTRACTS.—On the request of a con23 tractor that was required to submit cost or pricing data under subsection 

24 (a) in connection with a prime contract entered into on or before October 

25 13, 1994, the head of the executive agency that entered into the contract 

26 shall modify the contract to reflect paragraphs (2)(B) and (3)(B) of sub27 section (a). All those modifications shall be made without requiring consid28 eration. 

29 (g) ADJUSTMENT OF AMOUNTS.—Effective on October 1 of each year 

30 that is divisible by 5, each amount set forth in subsection (a) shall be ad31 justed to the amount that is equal to the fiscal year 1994 constant dollar 

32 value of the amount set forth. Any amount, as so adjusted, that is not even33 ly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. 

34 In the case of an amount that is evenly divisible by $25,000 but not evenly 

35 divisible by $50,000, the amount shall be rounded to the next higher mul36 tiple of $50,000. 

37 § 3503. Exceptions 

38 (a) IN GENERAL.—Submission of certified cost or pricing data shall not 

39 be required under section 3502 of this title in the case of a contract, a sub40 contract, or a modification of a contract or subcontract— 

41 (1) for which the price agreed on is based on— 


hsrobinson on PROD1PC76 with BILLS
114 

HR 1107 RH 

1 (A) adequate price competition; or 

2 (B) prices set by law or regulation; 

3 (2) for the acquisition of a commercial item; or 

4 (3) in an exceptional case when the head of the procuring activity, 

5 without delegation, determines that the requirements of this chapter 

6 may be waived and justifies in writing the reasons for the determina7 tion. 

8 (b) MODIFICATIONS OF CONTRACTS AND SUBCONTRACTS FOR COMMER9 CIAL ITEMS.—In the case of a modification of a contract or subcontract for 

10 a commercial item that is not covered by the exception to the submission 

11 of certified cost or pricing data in paragraph (1) or (2) of subsection (a), 

12 submission of certified cost or pricing data shall not be required under sec13 tion 3502 of this title if— 

14 (1) the contract or subcontract being modified is a contract or sub15 contract for which submission of certified cost or pricing data may not 

16 be required by reason of paragraph (1) or (2) of subsection (a); and 

17 (2) the modification would not change the contract or subcontract 

18 from a contract or subcontract for the acquisition of a commercial item 

19 to a contract or subcontract for the acquisition of an item other than 

20 a commercial item. 

21 § 3504. Cost or pricing data on below-threshold contracts 

22 (a) AUTHORITY TO REQUIRE SUBMISSION.—Subject to subsection (b), 

23 when certified cost or pricing data are not required to be submitted by sec24 tion 3502 of this title for a contract, subcontract, or modification of a con25 tract or subcontract, the data may nevertheless be required to be submitted 

26 by the head of the procuring activity, but only if the head of the procuring 

27 activity determines that the data are necessary for the evaluation by the 

28 agency of the reasonableness of the price of the contract, subcontract, or 

29 modification of a contract or subcontract. In any case in which the head 

30 of the procuring activity requires the data to be submitted under this sec31 tion, the head of the procuring activity shall justify in writing the reason 

32 for the requirement. 

33 (b) EXCEPTION.—The head of the procuring activity may not require cer34 tified cost or pricing data to be submitted under this section for any con35 tract or subcontract, or modification of a contract or subcontract, covered 

36 by the exceptions in section 3503(a)(1) or (2) of this title. 

37 (c) DELEGATION OF AUTHORITY PROHIBITED.—The head of a procuring 

38 activity may not delegate the functions under this section. 

39 § 3505. Submission of other information 

40 (a) AUTHORITY TO REQUIRE SUBMISSION.—When certified cost or pric41 ing data are not required to be submitted under this chapter for a contract, 


hsrobinson on PROD1PC76 with BILLS
115 

HR 1107 RH 

1 subcontract, or modification of a contract or subcontract, the contracting of2 ficer shall require submission of data other than certified cost or pricing 

3 data to the extent necessary to determine the reasonableness of the price 

4 of the contract, subcontract, or modification of the contract or subcontract. 

5 Except in the case of a contract or subcontract covered by the exceptions 

6 in section 3503(a)(1) of this title, the contracting officer shall require that 

7 the data submitted include, at a minimum, appropriate information on the 

8 prices at which the same item or similar items have previously been sold 

9 that is adequate for evaluating the reasonableness of the price for the pro10 curement. 

11 (b) LIMITATIONS ON AUTHORITY.—The Federal Acquisition Regulation 

12 shall include the following provisions regarding the types of information that 

13 contracting officers may require under subsection (a): 

14 (1) REASONABLE LIMITATIONS.—Reasonable limitations on requests 

15 for sales data relating to commercial items. 

16 (2) LIMITATION ON SCOPE OF REQUEST.—A requirement that a con17 tracting officer limit, to the maximum extent practicable, the scope of 

18 any request for information relating to commercial items from an offer19 or to only that information that is in the form regularly maintained 

20 by the offeror in commercial operations. 

21 (3) INFORMATION NOT TO BE DISCLOSED.—A statement that any in22 formation received relating to commercial items that is exempt from 

23 disclosure under section 552(b) of title 5 shall not be disclosed by the 

24 Federal Government. 

25 § 3506. Price reductions for defective cost or pricing data 

26 (a) PROVISION REQUIRING ADJUSTMENT.— 

27 (1) IN GENERAL.—A prime contract (or change or modification to 

28 a prime contract) under which a certificate under section 3502(b) of 

29 this title is required shall contain a provision that the price of the con30 tract to the Federal Government, including profit or fee, shall be ad31 justed to exclude any significant amount by which it may be deter32 mined by the head of the executive agency that the price was increased 

33 because the contractor (or any subcontractor required to make the cer34 tificate available) submitted defective cost or pricing data. 

35 (2) WHAT CONSTITUTES DEFECTIVE COST OR PRICING DATA.—For 

36 the purposes of this chapter, defective cost or pricing data are cost or 

37 pricing data that, as of the date of agreement on the price of the con38 tract (or another date agreed on between the parties), were inaccurate, 

39 incomplete, or noncurrent. If for purposes of the preceding sentence the 

40 parties agree on a date other than the date of agreement on the price 


hsrobinson on PROD1PC76 with BILLS
116 

HR 1107 RH 

1 of the contract, the date agreed on by the parties shall be as close to 

2 the date of agreement on the price of the contract as is practicable. 

3 (b) VALID DEFENSE.—In determining for purposes of a contract price 

4 adjustment under a contract provision required by subsection (a) whether, 

5 and to what extent, a contract price was increased because the contractor 

6 (or a subcontractor) submitted defective cost or pricing data, it is a defense 

7 that the Federal Government did not rely on the defective data submitted 

8 by the contractor or subcontractor. 

9 (c) INVALID DEFENSES.—It is not a defense to an adjustment of the 

10 price of a contract under a contract provision required by subsection (a) 

11 that— 

12 (1) the price of the contract would not have been modified even if 

13 accurate, complete, and current cost or pricing data had been sub14 mitted by the contractor or subcontractor because the contractor or 

15 subcontractor— 

16 (A) was the sole source of the property or services procured; or 

17 (B) otherwise was in a superior bargaining position with respect 

18 to the property or services procured; 

19 (2) the contracting officer should have known that the cost or pricing 

20 data in issue were defective even though the contractor or subcon21 tractor took no affirmative action to bring the character of the data 

22 to the attention of the contracting officer; 

23 (3) the contract was based on an agreement between the contractor 

24 and the Federal Government about the total cost of the contract and 

25 there was no agreement about the cost of each item procured under 

26 the contract; or 

27 (4) the prime contractor or subcontractor did not submit a certifi28 cation of cost or pricing data relating to the contract as required by 

29 section 3502(b) of this title. 

30 (d) OFFSETS.— 

31 (1) WHEN ALLOWED.—A contractor shall be allowed to offset an 

32 amount against the amount of a contract price adjustment under a 

33 contract provision required by subsection (a) if— 

34 (A) the contractor certifies to the contracting officer (or to a 

35 designated representative of the contracting officer) that, to the 

36 best of the contractor’s knowledge and belief, the contractor is en37 titled to the offset; and 

38 (B) the contractor proves that the cost or pricing data were 

39 available before the date of agreement on the price of the contract 

40 (or price of the modification), or, if applicable, consistent with 

41 subsection (a)(2), another date agreed on by the parties, and that 


hsrobinson on PROD1PC76 with BILLS
117 

HR 1107 RH 

1 the data were not submitted as specified in section 3502(c) of this 

2 title before that date. 

3 (2) WHEN NOT ALLOWED.—A contractor shall not be allowed to off4 set an amount otherwise authorized to be offset under paragraph (1) 

5 if— 

6 (A) the certification under section 3502(b) of this title with re7 spect to the cost or pricing data involved was known to be false 

8 when signed; or 

9 (B) the Federal Government proves that, had the cost or pricing 

10 data referred to in paragraph (1)(B) been submitted to the Fed11 eral Government before date of agreement on the price of the con12 tract (or price of the modification), or, if applicable, under sub13 section (a)(2), another date agreed on by the parties, the submis14 sion of the cost or pricing data would not have resulted in an in15 crease in that price in the amount to be offset. 

16 § 3507. Interest and penalties for certain overpayments 

17 (a) IN GENERAL.—If the Federal Government makes an overpayment to 

18 a contractor under a contract with an executive agency subject to this chap19 ter and the overpayment was due to the submission by the contractor of 

20 defective cost or pricing data, the contractor shall be liable to the Federal 

21 Government— 

22 (1) for interest on the amount of the overpayment, to be computed— 

23 (A) for the period beginning on the date the overpayment was 

24 made to the contractor and ending on the date the contractor re25 pays the amount of the overpayment to the Federal Government; 

26 and 

27 (B) at the current rate prescribed by the Secretary of the 

28 Treasury under section 6621 of the Internal Revenue Code of 

29 1986 (26 U.S.C. 6621); and 

30 (2) if the submission of the defective data was a knowing submission, 

31 for an additional amount equal to the amount of the overpayment. 

32 (b) LIABILITY NOT AFFECTED BY REFUSAL TO SUBMIT CERTIFI33 CATION.—Any liability under this section of a contractor that submits cost 

34 or pricing data but refuses to submit the certification required by section 

35 3502(b) of this title with respect to the cost or pricing data is not affected 

36 by the refusal to submit the certification. 

37 § 3508. Right to examine contractor records 

38 For the purpose of evaluating the accuracy, completeness, and currency 

39 of cost or pricing data required to be submitted by this chapter, an execu40 tive agency shall have the authority provided by section 4706(b)(2) of this 

41 title. 


hsrobinson on PROD1PC76 with BILLS
118 

HR 1107 RH 

1 § 3509. Notification of violations of Federal criminal law or 

2 overpayments 

3 (a) DEFINITION.—In this section, the term ‘‘covered contract’’ means any 

4 contract in an amount greater than $5,000,000 and more than 120 days 

5 in duration. 

6 (b) FEDERAL ACQUISITION REGULATION.—The Federal Acquisition Reg7 ulation shall include, pursuant to FAR Case 2007–006 (as published at 72 

8 Fed. Reg. 64019, November 14, 2007) or any follow-on FAR case, provi9 sions that require timely notification by Federal contractors of violations of 

10 Federal criminal law or overpayments in connection with the award or per11 formance of covered contracts or subcontracts, including those performed 

12 outside the United States and those for commercial items. 

13 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. 

14 § 3701. Basis of award and rejection 

15 (a) AWARD.—An executive agency shall evaluate sealed bids and competi16 tive proposals, and award a contract, based solely on the factors specified 

17 in the solicitation. 

18 (b) REJECTION.—All sealed bids or competitive proposals received in re19 sponse to a solicitation may be rejected if the agency head determines that 

20 rejection is in the public interest. 

21 § 3702. Sealed bids 

22 (a) OPENING OF BIDS.—Sealed bids shall be opened publicly at the time 

23 and place stated in the solicitation. 

24 (b) CRITERIA FOR AWARDING CONTRACT.—The executive agency shall 

25 evaluate the bids in accordance with section 3701(a) of this title without 

26 discussions with the bidders and, except as provided in section 3701(b) of 

27 this title, shall award a contract with reasonable promptness to the respon28 sible source whose bid conforms to the solicitation and is most advantageous 

29 to the Federal Government, considering only price and the other price-re30 lated factors included in the solicitation. 

31 (c) NOTICE OF AWARD.—The award of a contract shall be made by trans32 mitting, in writing or by electronic means, notice of the award to the suc33 cessful bidder. Within 3 days after the date of contract award, the executive 

34 agency shall notify, in writing or by electronic means, each bidder not 

35 awarded the contract that the contract has been awarded. 


hsrobinson on PROD1PC76 with BILLS
119 

HR 1107 RH 

1 § 3703. Competitive proposals 

2 (a) EVALUATION AND AWARD.—An executive agency shall evaluate com3 petitive proposals in accordance with section 3701(a) of this title and may 

4 award a contract— 

5 (1) after discussions with the offerors, provided that written or oral 

6 discussions have been conducted with all responsible offerors who sub7 mit proposals within the competitive range; or 

8 (2) based on the proposals received and without discussions with the 

9 offerors (other than discussions conducted for the purpose of minor 

10 clarification), if, as required by section 3306(b)(2)(B)(i) of this title, 

11 the solicitation included a statement that proposals are intended to be 

12 evaluated, and award made, without discussions unless discussions are 

13 determined to be necessary. 

14 (b) LIMIT ON NUMBER OF PROPOSALS.—If the contracting officer deter15 mines that the number of offerors that would otherwise be included in the 

16 competitive range under subsection (a)(1) exceeds the number at which an 

17 efficient competition can be conducted, the contracting officer may limit the 

18 number of proposals in the competitive range, in accordance with the cri19 teria specified in the solicitation, to the greatest number that will permit 

20 an efficient competition among the offerors rated most highly in accordance 

21 with those criteria. 

22 (c) CRITERIA FOR AWARDING CONTRACT.—Except as otherwise provided 

23 in section 3701(b) of this title, the executive agency shall award a contract 

24 with reasonable promptness to the responsible source whose proposal is most 

25 advantageous to the Federal Government, considering only cost or price and 

26 the other factors included in the solicitation. 

27 (d) NOTICE OF AWARD.—The executive agency shall award the contract 

28 by transmitting, in writing or by electronic means, notice of the award to 

29 that source and, within 3 days after the date of contract award, shall notify, 

30 in writing or by electronic means, all other offerors of the rejection of their 

31 proposals. 

32 § 3704. Post-award debriefings 

33 (a) REQUEST FOR DEBRIEFING.—When a contract is awarded by the 

34 head of an executive agency on the basis of competitive proposals, an unsuc35 cessful offeror, on written request received by the agency within 3 days after 

36 the date on which the unsuccessful offeror receives the notification of the 

37 contract award, shall be debriefed and furnished the basis for the selection 

38 decision and contract award. 

39 (b) WHEN DEBRIEFING TO BE CONDUCTED.—The executive agency shall 

40 debrief the offeror within, to the maximum extent practicable, 5 days after 

41 receipt of the request by the executive agency. 


hsrobinson on PROD1PC76 with BILLS
120 

HR 1107 RH 

1 (c) INFORMATION TO BE PROVIDED.—The debriefing shall include, at a 

2 minimum— 

3 (1) the executive agency’s evaluation of the significant weak or defi4 cient factors in the offeror’s offer; 

5 (2) the overall evaluated cost and technical rating of the offer of the 

6 contractor awarded the contract and the overall evaluated cost and 

7 technical rating of the offer of the debriefed offeror; 

8 (3) the overall ranking of all offers; 

9 (4) a summary of the rationale for the award; 

10 (5) in the case of a proposal that includes a commercial item that 

11 is an end item under the contract, the make and model of the item 

12 being provided in accordance with the offer of the contractor awarded 

13 the contract; and 

14 (6) reasonable responses to relevant questions posed by the debriefed 

15 offeror as to whether source selection procedures set forth in the solici16 tation, applicable regulations, and other applicable authorities were fol17 lowed by the executive agency. 

18 (d) INFORMATION NOT TO BE INCLUDED.—The debriefing may not in19 clude point-by-point comparisons of the debriefed offeror’s offer with other 

20 offers and may not disclose any information that is exempt from disclosure 

21 under section 552(b) of title 5. 

22 (e) INCLUSION OF STATEMENT IN SOLICITATION.—Each solicitation for 

23 competitive proposals shall include a statement that information described 

24 in subsection (c) may be disclosed in post-award debriefings. 

25 (f) AFTER SUCCESSFUL PROTEST.—If, within one year after the date of 

26 the contract award and as a result of a successful procurement protest, the 

27 executive agency seeks to fulfill the requirement under the protested con28 tract either on the basis of a new solicitation of offers or on the basis of 

29 new best and final offers requested for that contract, the head of the execu30 tive agency shall make available to all offerors— 

31 (1) the information provided in debriefings under this section regard32 ing the offer of the contractor awarded the contract; and 

33 (2) the same information that would have been provided to the origi34 nal offerors. 

35 (g) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall 

36 include a summary of the debriefing in the contract file. 

37 § 3705. Pre-award debriefings 

38 (a) REQUEST FOR DEBRIEFING.—When the contracting officer excludes 

39 an offeror submitting a competitive proposal from the competitive range (or 

40 otherwise excludes that offeror from further consideration prior to the final 

41 source selection decision), the excluded offeror may request in writing, withVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00120 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
121 

HR 1107 RH 

1 in 3 days after the date on which the excluded offeror receives notice of its 

2 exclusion, a debriefing prior to award. 

3 (b) WHEN DEBRIEFING TO BE CONDUCTED.—The contracting officer 

4 shall make every effort to debrief the unsuccessful offeror as soon as prac5 ticable but may refuse the request for a debriefing if it is not in the best 

6 interests of the Federal Government to conduct a debriefing at that time. 

7 (c) PRECONDITION FOR POST-AWARD DEBRIEFING.—The contracting of8 ficer is required to debrief an excluded offeror in accordance with section 

9 3704 of this title only if that offeror requested and was refused a pre-award 

10 debriefing under subsections (a) and (b). 

11 (d) INFORMATION TO BE PROVIDED.—The debriefing conducted under 

12 this section shall include— 

13 (1) the executive agency’s evaluation of the significant elements in 

14 the offeror’s offer; 

15 (2) a summary of the rationale for the offeror’s exclusion; and 

16 (3) reasonable responses to relevant questions posed by the debriefed 

17 offeror as to whether source selection procedures set forth in the solici18 tation, applicable regulations, and other applicable authorities were fol19 lowed by the executive agency. 

20 (e) INFORMATION NOT TO BE DISCLOSED.—The debriefing conducted 

21 pursuant to this section may not disclose the number or identity of other 

22 offerors and shall not disclose information about the content, ranking, or 

23 evaluation of other offerors’ proposals. 

24 (f) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall 

25 include a summary of the debriefing in the contract file. 

26 § 3706. Encouragement of alternative dispute resolution 

27 The Federal Acquisition Regulation shall include a provision encouraging 

28 the use of alternative dispute resolution techniques to provide informal, ex29 peditious, and inexpensive procedures for an offeror to consider using before 

30 filing a protest, prior to the award of a contract, of the exclusion of the 

31 offeror from the competitive range (or otherwise from further consideration) 

32 for that contract. 

33 § 3707. Antitrust violations 

34 If the agency head considers that a bid or proposal evidences a violation 

35 of the antitrust laws, the agency head shall refer the bid or proposal to the 

36 Attorney General for appropriate action. 

37 § 3708. Protests 

38 (a) PROTEST FILE.— 

39 (1) ESTABLISHMENT AND ACCESS.—If, in the case of a solicitation 

40 for a contract issued by, or an award or proposed award of a contract 

41 by, the head of an executive agency, a protest is filed pursuant to the 


hsrobinson on PROD1PC76 with BILLS
122 

HR 1107 RH 

1 procedures in subchapter V of chapter 35 of title 31, and an actual 

2 or prospective offeror requests, a file of the protest shall be established 

3 by the procuring activity and reasonable access shall be provided to ac4 tual or prospective offerors. 

5 (2) REDACTED INFORMATION.—Information exempt from disclosure 

6 under section 552 of title 5 may be redacted in a file established pursu7 ant to paragraph (1) unless an applicable protective order provides oth8 erwise. 

9 (b) AGENCY ACTIONS ON PROTESTS.—If, in connection with a protest, 

10 the head of an executive agency determines that a solicitation, proposed 

11 award, or award does not comply with the requirements of law or regula12 tion, the head of the executive agency may— 

13 (1) take any action set out in subparagraphs (A) to (F) of subsection 

14 (b)(1) of section 3554 of title 31; and 

15 (2) pay costs described in paragraph (1) of section 3554(c) of title 

16 31 within the limits referred to in paragraph (2) of section 3554(c). 

17 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. 

18 § 3901. Contracts awarded using procedures other than 

19 sealed-bid procedures 

20 (a) AUTHORIZED TYPES.—Except as provided in section 3905 of this 

21 title, contracts awarded after using procedures other than sealed-bid proce22 dures may be of any type which in the opinion of the agency head will pro23 mote the best interests of the Federal Government. 

24 (b) REQUIRED WARRANTY.— 

25 (1) CONTENT.—Every contract awarded after using procedures other 

26 than sealed-bid procedures shall contain a suitable warranty, as deter27 mined by the agency head, by the contractor that no person or selling 

28 agency has been employed or retained to solicit or secure the contract 

29 on an agreement or understanding for a commission, percentage, bro30 kerage, or contingent fee, except for bona fide employees or bona fide 

31 established commercial or selling agencies the contractor maintains to 

32 secure business. 

33 (2) REMEDY FOR BREACH OR VIOLATION.—For the breach or viola34 tion of the warranty, the Federal Government may annul the contract 

35 without liability or deduct from the contract price or consideration the 

36 full amount of the commission, percentage, brokerage, or contingent 

37 fee. 


hsrobinson on PROD1PC76 with BILLS
123 

HR 1107 RH 

1 (3) NONAPPLICATION.—Paragraph (1) does not apply to a contract 

2 for an amount that is not greater than the simplified acquisition 

3 threshold or to a contract for the acquisition of commercial items. 

4 § 3902. Severable services contracts for periods crossing fis5 cal years 

6 (a) AUTHORITY TO ENTER INTO CONTRACT.—The head of an executive 

7 agency may enter into a contract for the procurement of severable services 

8 for a period that begins in one fiscal year and ends in the next fiscal year 

9 if (without regard to any option to extend the period of the contract) the 

10 contract period does not exceed one year. 

11 (b) OBLIGATION OF FUNDS.—Funds made available for a fiscal year may 

12 be obligated for the total amount of a contract entered into under the au13 thority of this section. 

14 § 3903. Multiyear contracts 

15 (a) DEFINITION.—In this section, a multiyear contract is a contract for 

16 the purchase of property or services for more than one, but not more than 

17 5, program years. 

18 (b) AUTHORITY TO ENTER INTO CONTRACT.—An executive agency may 

19 enter into a multiyear contract for the acquisition of property or services 

20 if— 

21 (1) funds are available and obligated for the contract, for the full 

22 period of the contract or for the first fiscal year in which the contract 

23 is in effect, and for the estimated costs associated with a necessary ter24 mination of the contract; and 

25 (2) the executive agency determines that— 

26 (A) the need for the property or services is reasonably firm and 

27 continuing over the period of the contract; and 

28 (B) a multiyear contract will serve the best interests of the Fed29 eral Government by encouraging full and open competition or pro30 moting economy in administration, performance, and operation of 

31 the agency’s programs. 

32 (c) TERMINATION CLAUSE.—A multiyear contract entered into under the 

33 authority of this section shall include a clause that provides that the con34 tract shall be terminated if funds are not made available for the continu35 ation of the contract in a fiscal year covered by the contract. Funds avail36 able for paying termination costs shall remain available for that purpose 

37 until the costs associated with termination of the contract are paid. 

38 (d) CANCELLATION CEILING NOTICE.—Before a contract described in 

39 subsection (b) that contains a clause setting forth a cancellation ceiling in 

40 excess of $10,000,000 may be awarded, the executive agency shall give writ41 ten notification of the proposed contract and of the proposed cancellation 


hsrobinson on PROD1PC76 with BILLS
124 

HR 1107 RH 

1 ceiling for that contract to Congress. The contract may not be awarded until 

2 the end of the 30-day period beginning on the date of the notification. 

3 (e) CONTINGENCY CLAUSE FOR APPROPRIATION OF FUNDS.—A 

4 multiyear contract may provide that performance under the contract after 

5 the first year of the contract is contingent on the appropriation of funds 

6 and (if the contract does so provide) that a cancellation payment shall be 

7 made to the contractor if the funds are not appropriated. 

8 (f) OTHER LAW NOT AFFECTED.—This section does not modify or affect 

9 any other provision of law that authorizes multiyear contracts. 

10 § 3904. Contract authority for severable services contracts 

11 and multiyear contracts 

12 (a) COMPTROLLER GENERAL.—The Comptroller General may use avail13 able funds to enter into contracts for the procurement of severable services 

14 for a period that begins in one fiscal year and ends in the next fiscal year 

15 and to enter into multiyear contracts for the acquisition of property and 

16 nonaudit-related services to the same extent as executive agencies under sec17 tions 3902 and 3903 of this title. 

18 (b) LIBRARY OF CONGRESS.—The Library of Congress may use available 

19 funds to enter into contracts for the lease or procurement of severable serv20 ices for a period that begins in one fiscal year and ends in the next fiscal 

21 year and to enter into multiyear contracts for the acquisition of property 

22 and services pursuant to sections 3902 and 3903 of this title. 

23 (c) CHIEF ADMINISTRATIVE OFFICER OF THE HOUSE OF REPRESENTA24 TIVES.—The Chief Administrative Officer of the House of Representatives 

25 may enter into— 

26 (1) contracts for the procurement of severable services for a period 

27 that begins in one fiscal year and ends in the next fiscal year to the 

28 same extent as the head of an executive agency under the authority of 

29 section 3902 of this title; and 

30 (2) multiyear contracts for the acquisitions of property and 

31 nonaudit-related services to the same extent as executive agencies 

32 under the authority of section 3903 of this title. 

33 (d) CONGRESSIONAL BUDGET OFFICE.—The Congressional Budget Office 

34 may use available funds to enter into contracts for the procurement of sev35 erable services for a period that begins in one fiscal year and ends in the 

36 next fiscal year and may enter into multiyear contracts for the acquisition 

37 of property and services to the same extent as executive agencies under the 

38 authority of sections 3902 and 3903 of this title. 

39 (e) SECRETARY AND SERGEANT AT ARMS AND DOORKEEPER OF THE

40 SENATE.—Subject to regulations prescribed by the Committee on Rules and 


hsrobinson on PROD1PC76 with BILLS
125 

HR 1107 RH 

1 Administration of the Senate, the Secretary and the Sergeant at Arms and 

2 Doorkeeper of the Senate may enter into— 

3 (1) contracts for the procurement of severable services for a period 

4 that begins in one fiscal year and ends in the next fiscal year to the 

5 same extent and under the same conditions as the head of an executive 

6 agency under the authority of section 3902 of this title; and 

7 (2) multiyear contracts for the acquisition of property and services 

8 to the same extent and under the same conditions as executive agencies 

9 under the authority of section 3903 of this title. 

10 (f) CAPITOL POLICE.—The United States Capitol Police may enter into— 

11 (1) contracts for the procurement of severable services for a period 

12 that begins in one fiscal year and ends in the next fiscal year to the 

13 same extent as the head of an executive agency under the authority of 

14 section 3902 of this title; and 

15 (2) multiyear contracts for the acquisitions of property and 

16 nonaudit-related services to the same extent as executive agencies 

17 under the authority of section 3903 of this title. 

18 (g) ARCHITECT OF THE CAPITOL.—The Architect of the Capitol may 

19 enter into— 

20 (1) contracts for the procurement of severable services for a period 

21 that begins in one fiscal year and ends in the next fiscal year to the 

22 same extent as the head of an executive agency under the authority of 

23 section 3902 of this title; and 

24 (2) multiyear contracts for the acquisitions of property and 

25 nonaudit-related services to the same extent as executive agencies 

26 under the authority of section 3903 of this title. 

27 (h) SECRETARY OF THE SMITHSONIAN INSTITUTION.—The Secretary of 

28 the Smithsonian Institution may enter into— 

29 (1) contracts for the procurement of severable services for a period 

30 that begins in one fiscal year and ends in the next fiscal year under 

31 the authority of section 3902 of this title; and 

32 (2) multiyear contracts for the acquisition of property and services 

33 under the authority of section 3903 of this title. 

34 § 3905. Cost contracts 

35 (a) COST-PLUS-A-PERCENTAGE-OF-COST CONTRACTS DISALLOWED.— 

36 The cost-plus-a-percentage-of-cost system of contracting shall not be used. 

37 (b) COST-PLUS-A-FIXED-FEE CONTRACTS.— 

38 (1) IN GENERAL.—Except as provided in paragraphs (2) and (3), the 

39 fee in a cost-plus-a-fixed-fee contract shall not exceed 10 percent of the 

40 estimated cost of the contract, not including the fee, as determined by 

41 the agency head at the time of entering into the contract. 


hsrobinson on PROD1PC76 with BILLS
126 

HR 1107 RH 

1 (2) EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK.—The 

2 fee in a cost-plus-a-fixed-fee contract for experimental, developmental, 

3 or research work shall not exceed 15 percent of the estimated cost of 

4 the contract, not including the fee. 

5 (3) ARCHITECTURAL OR ENGINEERING SERVICES.—The fee in a 

6 cost-plus-a-fixed-fee contract for architectural or engineering services 

7 relating to any public works or utility project may include the contrac8 tor’s costs and shall not exceed 6 percent of the estimated cost, not 

9 including the fee, as determined by the agency head at the time of en10 tering into the contract, of the project to which the fee applies. 

11 (c) NOTIFICATION.—All cost and cost-plus-a-fixed-fee contracts shall pro12 vide for advance notification by the contractor to the procuring agency of 

13 any subcontract on a cost-plus-a-fixed-fee basis and of any fixed-price sub14 contract or purchase order which exceeds in dollar amount either the sim15 plified acquisition threshold or 5 percent of the total estimated cost of the 

16 prime contract. 

17 (d) RIGHT TO AUDIT.—A procuring agency, through any authorized rep18 resentative thereof, has the right to inspect the plans and to audit the books 

19 and records of a prime contractor or subcontractor engaged in the perform20 ance of a cost or cost-plus-a-fixed-fee contract. 

21 § 3906. Cost-reimbursement contracts 

22 (a) DEFINITION.—In this section, the term ‘‘executive agency’’ has the 

23 same meaning given in section 133 of this title. 

24 (b) REGULATIONS ON THE USE OF COST-REIMBURSEMENT CON25 TRACTS.—The Federal Acquisition Regulation shall address the use of cost26 reimbursement contracts. 

27 (c) CONTENT.—The regulations promulgated under subsection (b) shall 

28 include guidance regarding— 

29 (1) when and under what circumstances cost-reimbursement con30 tracts are appropriate; 

31 (2) the acquisition plan findings necessary to support a decision to 

32 use cost-reimbursement contracts; and 

33 (3) the acquisition workforce resources necessary to award and man34 age cost-reimbursement contracts. 

35 (d) ANNUAL REPORT.— 

36 (1) IN GENERAL.—The Director of the Office of Management and 

37 Budget shall submit an annual report to Congressional committees 

38 identified in subsection (e) on the use of cost-reimbursement contracts 

39 and task or delivery orders by all executive agencies. 

40 (2) CONTENTS.—The report shall include— 


hsrobinson on PROD1PC76 with BILLS
127 

HR 1107 RH 

1 (A) the total number and value of contracts awarded and orders 

2 issued during the covered fiscal year; 

3 (B) the total number and value of cost-reimbursement contracts 

4 awarded and orders issued during the covered fiscal year; and 

5 (C) an assessment of the effectiveness of the regulations pro6 mulgated pursuant to subsection (b) in ensuring the appropriate 

7 use of cost-reimbursement contracts. 

8 (3) TIME REQUIREMENTS.— 

9 (A) DEADLINE.—The report shall be submitted no later than 

10 March 1 and shall cover the fiscal year ending September 30 of 

11 the prior year. 

12 (B) LIMITATION.—The report shall be submitted from March 1, 

13 2009, until March 1, 2014. 

14 (e) CONGRESSIONAL COMMITTEES.—The report required by subsection 

15 (d) shall be submitted to— 

16 (1) the Committee on Oversight and Government Reform of the 

17 House of Representatives; 

18 (2) the Committee on Homeland Security and Governmental Affairs 

19 of the Senate; 

20 (3) the Committees on Appropriations of the House of Representa21 tives and the Senate; and 

22 (4) in the case of the Department of Defense and the Department 

23 of Energy, the Committees on Armed Services of the Senate and the 

24 House of Representatives. 

25 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. 

26 § 4101. Definitions 

27 In this chapter: 

28 (1) DELIVERY ORDER CONTRACT.—The term ‘‘delivery order con29 tract’’ means a contract for property that— 

30 (A) does not procure or specify a firm quantity of property 

31 (other than a minimum or maximum quantity); and 

32 (B) provides for the issuance of orders for the delivery of prop33 erty during the period of the contract. 

34 (2) TASK ORDER CONTRACT.—The term ‘‘task order contract’’ 

35 means a contract for services that— 

36 (A) does not procure or specify a firm quantity of services 

37 (other than a minimum or maximum quantity); and 


hsrobinson on PROD1PC76 with BILLS
128 

HR 1107 RH 

1 (B) provides for the issuance of orders for the performance of 

2 tasks during the period of the contract. 

3 § 4102. Authorities or responsibilities not affected 

4 This chapter does not modify or supersede, and is not intended to impair 

5 or restrict, authorities or responsibilities under sections 1101 to 1104 of 

6 title 40. 

7 § 4103. General authority 

8 (a) AUTHORITY TO AWARD.—Subject to the requirements of this section, 

9 section 4106 of this title, and other applicable law, the head of an executive 

10 agency may enter into a task or delivery order contract for procurement of 

11 services or property. 

12 (b) SOLICITATION.—The solicitation for a task or delivery order contract 

13 shall include— 

14 (1) the period of the contract, including the number of options to 

15 extend the contract and the period for which the contract may be ex16 tended under each option; 

17 (2) the maximum quantity or dollar value of the services or property 

18 to be procured under the contract; and 

19 (3) a statement of work, specifications, or other description that rea20 sonably describes the general scope, nature, complexity, and purposes 

21 of the services or property to be procured under the contract. 

22 (c) APPLICABILITY OF RESTRICTION ON USE OF NONCOMPETITIVE PRO23 CEDURES.—The head of an executive agency may use procedures other than 

24 competitive procedures to enter into a task or delivery order contract under 

25 this section only if an exception in section 3304(a) of this title applies to 

26 the contract and the use of those procedures is approved in accordance with 

27 section 3304(e) of this title. 

28 (d) SINGLE AND MULTIPLE CONTRACT AWARDS.— 

29 (1) EXERCISE OF AUTHORITY.—The head of an executive agency 

30 may exercise the authority provided in this section— 

31 (A) to award a single task or delivery order contract; or 

32 (B) if the solicitation states that the head of the executive agen33 cy has the option to do so, to award separate task or delivery 

34 order contracts for the same or similar services or property to 2 

35 or more sources. 

36 (2) DETERMINATION NOT REQUIRED.—No determination under sec37 tion 3303 of this title is required for an award of multiple task or de38 livery order contracts under paragraph (1)(B). 

39 (3) SINGLE SOURCE AWARD FOR TASK OR DELIVERY ORDER CON40 TRACTS EXCEEDING $100,000,000.— 


hsrobinson on PROD1PC76 with BILLS
129 

HR 1107 RH 

1 (A) WHEN SINGLE AWARDS ARE ALLOWED.—No task or deliv2 ery order contract in an amount estimated to exceed $100,000,000 

3 (including all options) may be awarded to a single source unless 

4 the head of the executive agency determines in writing that— 

5 (i) the task or delivery orders expected under the contract 

6 are so integrally related that only a single source can reason7 ably perform the work; 

8 (ii) the contract provides only for firm, fixed price task or9 ders or delivery orders for— 

10 (I) products for which unit prices are established in 

11 the contract; or 

12 (II) services for which prices are established in the 

13 contract for the specific tasks to be performed; 

14 (iii) only one source is qualified and capable of performing 

15 the work at a reasonable price to the Federal Government; or 

16 (iv) because of exceptional circumstances, it is necessary in 

17 the public interest to award the contract to a single source. 

18 (B) NOTIFICATION OF CONGRESS.—The head of the executive 

19 agency shall notify Congress within 30 days after any determina20 tion under subparagraph (A)(iv). 

21 (4) REGULATIONS.—Regulations implementing this subsection shall 

22 establish— 

23 (A) a preference for awarding, to the maximum extent prac24 ticable, multiple task or delivery order contracts for the same or 

25 similar services or property under paragraph (1)(B); and 

26 (B) criteria for determining when award of multiple task or de27 livery order contracts would not be in the best interest of the Fed28 eral Government. 

29 (e) CONTRACT MODIFICATIONS.—A task or delivery order may not in30 crease the scope, period, or maximum value of the task or delivery order 

31 contract under which the order is issued. The scope, period, or maximum 

32 value of the contract may be increased only by modification of the contract. 

33 (f) INAPPLICABILITY TO CONTRACTS FOR ADVISORY AND ASSISTANCE

34 SERVICES.—Except as otherwise specifically provided in section 4105 of this 

35 title, this section does not apply to a task or delivery order contract for the 

36 acquisition of advisory and assistance services (as defined in section 1105(g) 

37 of title 31). 

38 (g) RELATIONSHIP TO OTHER CONTRACTING AUTHORITY.—Nothing in 

39 this section may be construed to limit or expand any authority of the head 

40 of an executive agency or the Administrator of General Services to enter 


hsrobinson on PROD1PC76 with BILLS
130 

HR 1107 RH 

1 into schedule, multiple award, or task or delivery order contracts under any 

2 other provision of law. 

3 § 4104. Guidance on use of task and delivery order contracts 

4 (a) GUIDANCE IN FEDERAL ACQUISITION REGULATION.—The Federal 

5 Acquisition Regulation issued in accordance with sections 1121(b) and 

6 1303(a)(1) of this title shall provide guidance to agencies on the appropriate 

7 use of task and delivery order contracts in accordance with this chapter and 

8 sections 2304a to 2304d of title 10. 

9 (b) CONTENT OF REGULATIONS.—The regulations issued pursuant to 

10 subsection (a) at a minimum shall provide specific guidance on— 

11 (1) the appropriate use of Government-wide and other multiagency 

12 contracts entered into in accordance with this chapter and sections 

13 2304a to 2304d of title 10; and 

14 (2) steps that agencies should take in entering into and admin15 istering multiple award task and delivery order contracts to ensure 

16 compliance with the requirement in— 

17 (A) section 11312 of title 40 for capital planning and invest18 ment control in purchases of information technology products and 

19 services; 

20 (B) section 4106(c) of this title and section 2304c(b) of title 10 

21 to ensure that all contractors are afforded a fair opportunity to 

22 be considered for the award of task and delivery orders; and 

23 (C) section 4106(e) of this title and section 2304c(c) of title 10 

24 for a statement of work in each task or delivery order issued that 

25 clearly specifies all tasks to be performed or property to be deliv26 ered under the order. 

27 (c) FEDERAL SUPPLY SCHEDULES PROGRAM.—The Administrator for 

28 Federal Procurement Policy shall consult with the Administrator of General 

29 Services to assess the effectiveness of the multiple awards schedule program 

30 of the General Services Administration referred to in section 152(3) of this 

31 title that is administered as the Federal Supply Schedules program. The as32 sessment shall include examination of— 

33 (1) the administration of the program by the Administrator of Gen34 eral Services; and 

35 (2) the ordering and program practices followed by Federal customer 

36 agencies in using schedules established under the program. 

37 § 4105. Advisory and assistance services 

38 (a) DEFINITION.—In this section, the term ‘‘advisory and assistance serv39 ices’’ has the same meaning given that term in section 1105(g) of title 31. 

40 (b) AUTHORITY TO AWARD.— 


hsrobinson on PROD1PC76 with BILLS
131 

HR 1107 RH 

1 (1) IN GENERAL.—Subject to the requirements of this section, sec2 tion 4106 of this title, and other applicable law, the head of an execu3 tive agency may enter into a task order contract for procurement of 

4 advisory and assistance services. 

5 (2) ONLY UNDER THIS SECTION.—The head of an executive agency 

6 may enter into a task order contract for advisory and assistance serv7 ices only under this section. 

8 (c) CONTRACT PERIOD.— 

9 (1) CONTRACT NOT TO EXCEED 5 YEARS.—The period of a task 

10 order contract entered into under this section, including all periods of 

11 extensions of the contract under options, modifications, or otherwise, 

12 may not exceed 5 years unless a longer period is specifically authorized 

13 in a law that is applicable to the contract. 

14 (2) WAIVER AUTHORITY TO EXTEND CONTRACT.— 

15 (A) WHEN WAIVER MAY BE ISSUED.—The head of an executive 

16 agency may issue a waiver to extend a task order contract entered 

17 into under this section for a period not exceeding 10 years, 

18 through 5 one-year options, if the head of the agency determines 

19 in writing— 

20 (i) that the contract provides engineering or technical serv21 ices of such a unique and substantial technical nature that 

22 award of a new contract would be harmful to the continuity 

23 of the program for which the services are performed; 

24 (ii) that award of a new contract would create a large dis25 ruption in services provided to the executive agency; and 

26 (iii) that the executive agency would, through award of a 

27 new contract, endure program risk during critical program 

28 stages due to loss of program corporate knowledge of ongoing 

29 program activities. 

30 (B) DELEGATION.—The authority of the head of an executive 

31 agency under subparagraph (A) may be delegated only to the 

32 Chief Acquisition Officer of the agency (or the senior procurement 

33 executive in the case of an agency for which a Chief Acquisition 

34 Officer has not been appointed or designated under section 

35 1702(a) of this title). 

36 (C) REPORT.—Not later than April 1, 2007, the Administrator 

37 shall submit to the Committee on Homeland Security and Govern38 mental Affairs of the Senate and the Committee on Oversight and 

39 Government Reform of the House of Representatives a report on 

40 advisory and assistance services. The report shall include the fol41 lowing information: 


hsrobinson on PROD1PC76 with BILLS
132 

HR 1107 RH 

1 (i) The methods used by executive agencies to identify a 

2 contract as an advisory and assistance services contract, as 

3 defined in subsection (a). 

4 (ii) The number of advisory and assistance services con5 tracts awarded by each executive agency during the 5-year 

6 period preceding October 17, 2006. 

7 (iii) The average annual expenditures by each executive 

8 agency for advisory and assistance services contracts. 

9 (iv) The average length of advisory and assistance services 

10 contracts. 

11 (v) The number of advisory and assistance services con12 tracts recompeted and awarded to the previous award winner. 

13 (D) PROHIBITION ON USE OF AUTHORITY BY EXECUTIVE AGEN14 CIES IF REPORT NOT SUBMITTED.—The head of an executive 

15 agency may not issue a waiver under subparagraph (A) if the re16 port required by subparagraph (C) is not submitted by April 1, 

17 2007. 

18 (E) TERMINATION OF AUTHORITY.—A waiver may not be issued 

19 under this paragraph after December 31, 2011. 

20 (d) CONTENT OF NOTICE.—The notice required by section 1708 of this 

21 title and section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall 

22 reasonably and fairly describe the general scope, magnitude, and duration 

23 of the proposed task order contract in a manner that would reasonably en24 able a potential offeror to decide whether to request the solicitation and con25 sider submitting an offer. 

26 (e) REQUIRED CONTENT OF SOLICITATION AND CONTRACT.— 

27 (1) SOLICITATION.—The solicitation shall include the information 

28 (regarding services) described in section 4103(b) of this title. 

29 (2) CONTRACT.—A task order contract entered into under this sec30 tion shall contain the same information that is required by paragraph 

31 (1) to be included in the solicitation of offers for that contract. 

32 (f) MULTIPLE AWARDS.— 

33 (1) AUTHORITY TO MAKE MULTIPLE AWARDS.—On the basis of one 

34 solicitation, the head of an executive agency may award separate task 

35 order contracts under this section for the same or similar services to 

36 2 or more sources if the solicitation states that the head of the execu37 tive agency has the option to do so. 

38 (2) CONTENT OF SOLICITATION.—In the case of a task order con39 tract for advisory and assistance services to be entered into under this 

40 section, if the contract period is to exceed 3 years and the contract 


hsrobinson on PROD1PC76 with BILLS
133 

HR 1107 RH 

1 amount is estimated to exceed $10,000,000 (including all options), the 

2 solicitation shall— 

3 (A) provide for a multiple award authorized under paragraph 

4 (1); and 

5 (B) include a statement that the head of the executive agency 

6 may also elect to award only one task order contract if the head 

7 of the executive agency determines in writing that only one of the 

8 offerors is capable of providing the services required at the level 

9 of quality required. 

10 (3) NONAPPLICATION.—Paragraph (2) does not apply in the case of 

11 a solicitation for which the head of the executive agency concerned de12 termines in writing that, because the services required under the con13 tract are unique or highly specialized, it is not practicable to award 

14 more than one contract. 

15 (g) CONTRACT MODIFICATIONS.— 

16 (1) INCREASE IN SCOPE, PERIOD, OR MAXIMUM VALUE OF CONTRACT

17 ONLY BY MODIFICATION OF CONTRACT.—A task order may not in18 crease the scope, period, or maximum value of the task order contract 

19 under which the order is issued. The scope, period, or maximum value 

20 of the contract may be increased only by modification of the contract. 

21 (2) USE OF COMPETITIVE PROCEDURES.—Unless use of procedures 

22 other than competitive procedures is authorized by an exception in sec23 tion 3304(a) of this title and approved in accordance with section 

24 3304(e) of this title, competitive procedures shall be used for making 

25 such a modification. 

26 (3) NOTICE.—Notice regarding the modification shall be provided in 

27 accordance with section 1708 of this title and section 8(e) of the Small 

28 Business Act (15 U.S.C. 637(e)). 

29 (h) CONTRACT EXTENSIONS.— 

30 (1) WHEN CONTRACT MAY BE EXTENDED.—Notwithstanding the 

31 limitation on the contract period set forth in subsection (c) or in a so32 licitation or contract pursuant to subsection (f), a contract entered into 

33 by the head of an executive agency under this section may be extended 

34 on a sole-source basis for a period not exceeding 6 months if the head 

35 of the executive agency determines that— 

36 (A) the award of a follow-on contract has been delayed by cir37 cumstances that were not reasonably foreseeable at the time the 

38 initial contract was entered into; and 

39 (B) the extension is necessary to ensure continuity of the receipt 

40 of services pending the award of, and commencement of perform41 ance under, the follow-on contract. 


hsrobinson on PROD1PC76 with BILLS
134 

HR 1107 RH 

1 (2) LIMIT OF ONE EXTENSION.—A task order contract may be ex2 tended under paragraph (1) only once and only in accordance with the 

3 limitations and requirements of this subsection. 

4 (i) INAPPLICABILITY TO CERTAIN CONTRACTS.—This section does not 

5 apply to a contract for the acquisition of property or services that includes 

6 acquisition of advisory and assistance services if the head of the executive 

7 agency entering into the contract determines that, under the contract, advi8 sory and assistance services are necessarily incident to, and not a significant 

9 component of, the contract. 

10 § 4106. Orders 

11 (a) APPLICATION.—This section applies to task and delivery order con12 tracts entered into under sections 4103 and 4105 of this title. 

13 (b) ACTIONS NOT REQUIRED FOR ISSUANCE OF ORDERS.—The following 

14 actions are not required for issuance of a task or delivery order under a 

15 task or delivery order contract: 

16 (1) A separate notice for the order under section 1708 of this title 

17 or section 8(e) of the Small Business Act (15 U.S.C. 637(e)). 

18 (2) Except as provided in subsection (c), a competition (or a waiver 

19 of competition approved in accordance with section 3304(e) of this 

20 title) that is separate from that used for entering into the contract. 

21 (c) MULTIPLE AWARD CONTRACTS.—When multiple contracts are award22 ed under section 4103(d)(1)(B) or 4105(f) of this title, all contractors 

23 awarded the contracts shall be provided a fair opportunity to be considered, 

24 pursuant to procedures set forth in the contracts, for each task or delivery 

25 order in excess of $2,500 that is to be issued under any of the contracts, 

26 unless— 

27 (1) the executive agency’s need for the services or property ordered 

28 is of such unusual urgency that providing the opportunity to all of 

29 those contractors would result in unacceptable delays in fulfilling that 

30 need; 

31 (2) only one of those contractors is capable of providing the services 

32 or property required at the level of quality required because the services 

33 or property ordered are unique or highly specialized; 

34 (3) the task or delivery order should be issued on a sole-source basis 

35 in the interest of economy and efficiency because it is a logical follow36 on to a task or delivery order already issued on a competitive basis; 

37 or 

38 (4) it is necessary to place the order with a particular contractor to 

39 satisfy a minimum guarantee. 

40 (d) ENHANCED COMPETITION FOR ORDERS IN EXCESS OF $5,000,000.— 

41 In the case of a task or delivery order in excess of $5,000,000, the requireVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00134 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
135 

HR 1107 RH 

1 ment to provide all contractors a fair opportunity to be considered under 

2 subsection (c) is not met unless all such contractors are provided, at a min3 imum— 

4 (1) a notice of the task or delivery order that includes a clear state5 ment of the executive agency’s requirements; 

6 (2) a reasonable period of time to provide a proposal in response to 

7 the notice; 

8 (3) disclosure of the significant factors and subfactors, including cost 

9 or price, that the executive agency expects to consider in evaluating 

10 such proposals, and their relative importance; 

11 (4) in the case of an award that is to be made on a best value basis, 

12 a written statement documenting— 

13 (A) the basis for the award; and 

14 (B) the relative importance of quality and price or cost factors; 

15 and 

16 (5) an opportunity for a post-award debriefing consistent with the 

17 requirements of section 3704 of this title. 

18 (e) STATEMENT OF WORK.—A task or delivery order shall include a 

19 statement of work that clearly specifies all tasks to be performed or prop20 erty to be delivered under the order. 

21 (f) PROTESTS.— 

22 (1) PROTEST NOT AUTHORIZED.—A protest is not authorized in con23 nection with the issuance or proposed issuance of a task or delivery 

24 order except for— 

25 (A) a protest on the ground that the order increases the scope, 

26 period, or maximum value of the contract under which the order 

27 is issued; or 

28 (B) a protest of an order valued in excess of $10,000,000. 

29 (2) JURISDICTION OVER PROTESTS.—Notwithstanding section 3556 

30 of title 31, the Comptroller General shall have exclusive jurisdiction of 

31 a protest authorized under paragraph (1)(B). 

32 (3) EFFECTIVE PERIOD.—This subsection shall be in effect for three 

33 years, beginning on the date that is 120 days after January 28, 2008. 

34 (g) TASK AND DELIVERY ORDER OMBUDSMAN.— 

35 (1) APPOINTMENT OR DESIGNATION AND RESPONSIBILITIES.—The 

36 head of each executive agency who awards multiple task or delivery 

37 order contracts under section 4103(d)(1)(B) or 4105(f) of this title 

38 shall appoint or designate a task and delivery order ombudsman who 

39 shall be responsible for reviewing complaints from the contractors on 

40 those contracts and ensuring that all of the contractors are afforded 


hsrobinson on PROD1PC76 with BILLS
136 

HR 1107 RH 

1 a fair opportunity to be considered for task or delivery orders when re2 quired under subsection (c). 

3 (2) WHO IS ELIGIBLE.—The task and delivery order ombudsman 

4 shall be a senior agency official who is independent of the contracting 

5 officer for the contracts and may be the executive agency’s advocate 

6 for competition. 

7 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. 

8 § 4301. Definitions 

9 In this chapter: 

10 (1) COMPENSATION.—The term ‘‘compensation’’, for a fiscal year, 

11 means the total amount of wages, salary, bonuses, and deferred com12 pensation for the fiscal year, whether paid, earned, or otherwise accru13 ing, as recorded in an employer’s cost accounting records for the fiscal 

14 year. 

15 (2) COVERED CONTRACT.—The term ‘‘covered contract’’ means a 

16 contract for an amount in excess of $500,000 that is entered into by 

17 an executive agency, except that the term does not include a fixed-price 

18 contract without cost incentives or any firm fixed-price contract for the 

19 purchase of commercial items. 

20 (3) FISCAL YEAR.—The term ‘‘fiscal year’’ means a fiscal year estab21 lished by a contractor for accounting purposes. 

22 (4) SENIOR EXECUTIVE.—The term ‘‘senior executive’’, with respect 

23 to a contractor, means the 5 most highly compensated employees in 

24 management positions at each home office and each segment of the 

25 contractor. 

26 § 4302. Adjustment of threshold amount of covered contract 

27 Effective on October 1 of each year that is divisible by 5, the amount 

28 set forth in section 4301(2) of this title shall be adjusted to the equivalent 

29 amount in constant fiscal year 1994 dollars. An adjusted amount that is 

30 not evenly divisible by $50,000 shall be rounded to the nearest multiple of 

31 $50,000. If an amount is evenly divisible by $25,000 but is not evenly divis32 ible by $50,000, the amount shall be rounded to the next higher multiple 

33 of $50,000. 


hsrobinson on PROD1PC76 with BILLS
137 

HR 1107 RH 

1 § 4303. Effect of submission of unallowable costs 

2 (a) INDIRECT COST THAT VIOLATES FEDERAL ACQUISITION REGULA3 TION COST PRINCIPLE.—An executive agency shall require that a covered 

4 contract provide that if the contractor submits to the executive agency a 

5 proposal for settlement of indirect costs incurred by the contractor for any 

6 period after those costs have been accrued and if that proposal includes the 

7 submission of a cost that is unallowable because the cost violates a cost 

8 principle in the Federal Acquisition Regulation or an executive agency sup9 plement to the Federal Acquisition Regulation, the cost shall be disallowed. 

10 (b) PENALTY FOR VIOLATION OF COST PRINCIPLE.— 

11 (1) UNALLOWABLE COST IN PROPOSAL.—If the executive agency de12 termines that a cost submitted by a contractor in its proposal for set13 tlement is expressly unallowable under a cost principle referred to in 

14 subsection (a) that defines the allowability of specific selected costs, the 

15 executive agency shall assess a penalty against the contractor in an 

16 amount equal to— 

17 (A) the amount of the disallowed cost allocated to covered con18 tracts for which a proposal for settlement of indirect costs has 

19 been submitted; plus 

20 (B) interest (to be computed based on provisions in the Federal 

21 Acquisition Regulation) to compensate the Federal Government 

22 for the use of the amount which a contractor has been paid in ex23 cess of the amount to which the contractor was entitled. 

24 (2) COST DETERMINED TO BE UNALLOWABLE BEFORE PROPOSAL

25 SUBMITTED.—If the executive agency determines that a proposal for 

26 settlement of indirect costs submitted by a contractor includes a cost 

27 determined to be unallowable in the case of that contractor before the 

28 submission of that proposal, the executive agency shall assess a penalty 

29 against the contractor in an amount equal to 2 times the amount of 

30 the disallowed cost allocated to covered contracts for which a proposal 

31 for settlement of indirect costs has been submitted. 

32 (c) WAIVER OF PENALTY.—The Federal Acquisition Regulation shall pro33 vide for a penalty under subsection (b) to be waived in the case of a con34 tractor’s proposal for settlement of indirect costs when— 

35 (1) the contractor withdraws the proposal before the formal initiation 

36 of an audit of the proposal by the Federal Government and resubmits 

37 a revised proposal; 

38 (2) the amount of unallowable costs subject to the penalty is insig39 nificant; or 

40 (3) the contractor demonstrates, to the contracting officer’s satisfac41 tion, that— 


hsrobinson on PROD1PC76 with BILLS
138 

HR 1107 RH 

1 (A) it has established appropriate policies and personnel train2 ing and an internal control and review system that provide assur3 ances that unallowable costs subject to penalties are precluded 

4 from being included in the contractor’s proposal for settlement of 

5 indirect costs; and 

6 (B) the unallowable costs subject to the penalty were inadvert7 ently incorporated into the proposal. 

8 (d) APPLICABILITY OF CONTRACT DISPUTES PROCEDURE.—An action of 

9 an executive agency under subsection (a) or (b)— 

10 (1) shall be considered a final decision for the purposes of section 

11 7103 of this title; and 

12 (2) is appealable in the manner provided in section 7104(a) of this 

13 title. 

14 § 4304. Specific costs not allowable 

15 (a) SPECIFIC COSTS.—The following costs are not allowable under a cov16 ered contract: 

17 (1) Costs of entertainment, including amusement, diversion, and so18 cial activities, and any costs directly associated with those costs (such 

19 as tickets to shows or sports events, meals, lodging, rentals, transpor20 tation, and gratuities). 

21 (2) Costs incurred to influence (directly or indirectly) legislative ac22 tion on any matter pending before Congress, a State legislature, or a 

23 legislative body of a political subdivision of a State. 

24 (3) Costs incurred in defense of any civil or criminal fraud pro25 ceeding or similar proceeding (including filing of any false certification) 

26 brought by the Federal Government where the contractor is found lia27 ble or had pleaded nolo contendere to a charge of fraud or similar pro28 ceeding (including filing of a false certification). 

29 (4) Payments of fines and penalties resulting from violations of, or 

30 failure to comply with, Federal, State, local, or foreign laws and regula31 tions, except when incurred as a result of compliance with specific 

32 terms and conditions of the contract or specific written instructions 

33 from the contracting officer authorizing in advance those payments in 

34 accordance with applicable provisions of the Federal Acquisition Regu35 lation. 

36 (5) Costs of membership in any social, dining, or country club or or37 ganization. 

38 (6) Costs of alcoholic beverages. 

39 (7) Contributions or donations, regardless of the recipient. 

40 (8) Costs of advertising designed to promote the contractor or its 

41 products. 


hsrobinson on PROD1PC76 with BILLS
139 

HR 1107 RH 

1 (9) Costs of promotional items and memorabilia, including models, 

2 gifts, and souvenirs. 

3 (10) Costs for travel by commercial aircraft that exceed the amount 

4 of the standard commercial fare. 

5 (11) Costs incurred in making any payment (commonly known as a 

6 ‘‘golden parachute payment’’) that is— 

7 (A) in an amount in excess of the normal severance pay paid 

8 by the contractor to an employee on termination of employment; 

9 and 

10 (B) paid to the employee contingent on, and following, a change 

11 in management control over, or ownership of, the contractor or a 

12 substantial portion of the contractor’s assets. 

13 (12) Costs of commercial insurance that protects against the costs 

14 of the contractor for correction of the contractor’s own defects in mate15 rials or workmanship. 

16 (13) Costs of severance pay paid by the contractor to foreign nation17 als employed by the contractor under a service contract performed out18 side the United States, to the extent that the amount of severance pay 

19 paid in any case exceeds the amount paid in the industry involved 

20 under the customary or prevailing practice for firms in that industry 

21 providing similar services in the United States, as determined under 

22 the Federal Acquisition Regulation. 

23 (14) Costs of severance pay paid by the contractor to a foreign na24 tional employed by the contractor under a service contract performed 

25 in a foreign country if the termination of the employment of the foreign 

26 national is the result of the closing of, or the curtailment of activities 

27 at, a Federal Government facility in that country at the request of the 

28 government of that country. 

29 (15) Costs incurred by a contractor in connection with any criminal, 

30 civil, or administrative proceeding commenced by the Federal Govern31 ment or a State, to the extent provided in section 4310 of this title. 

32 (16) Costs of compensation of senior executives of contractors for a 

33 fiscal year, regardless of the contract funding source, to the extent that 

34 the compensation exceeds the benchmark compensation amount deter35 mined applicable for the fiscal year by the Administrator under section 

36 1127 of this title. 

37 (b) WAIVER OF SEVERANCE PAY RESTRICTIONS FOR FOREIGN NATION38 ALS.— 

39 (1) EXECUTIVE AGENCY DETERMINATION.—Pursuant to the Federal 

40 Acquisition Regulation and subject to the availability of appropriations, 

41 an executive agency, in awarding a covered contract, may waive the apVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00139 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
140 

HR 1107 RH 

1 plication of paragraphs (13) and (14) of subsection (a) to that contract 

2 if the executive agency determines that— 

3 (A) the application of those provisions to that contract would 

4 adversely affect the continuation of a program, project, or activity 

5 that provides significant support services for employees of the ex6 ecutive agency posted outside the United States; 

7 (B) the contractor has taken (or has established plans to take) 

8 appropriate actions within the contractor’s control to minimize the 

9 amount and number of incidents of the payment of severance pay 

10 by the contractor to employees under the contract who are foreign 

11 nationals; and 

12 (C) the payment of severance pay is necessary to comply with 

13 a law that is generally applicable to a significant number of busi14 nesses in the country in which the foreign national receiving the 

15 payment performed services under the contract or is necessary to 

16 comply with a collective bargaining agreement. 

17 (2) SOLICITATION TO INCLUDE STATEMENT ABOUT WAIVER.—An ex18 ecutive agency shall include in the solicitation for a covered contract 

19 a statement indicating— 

20 (A) that a waiver has been granted under paragraph (1) for the 

21 contract; or 

22 (B) whether the executive agency will consider granting a waiver 

23 and, if the executive agency will consider granting a waiver, the 

24 criteria to be used in granting the waiver. 

25 (3) DETERMINATION TO BE MADE BEFORE CONTRACT AWARDED.— 

26 An executive agency shall make the final determination whether to 

27 grant a waiver under paragraph (1) with respect to a covered contract 

28 before award of the contract. 

29 (c) ESTABLISHMENT OF DEFINITIONS, EXCLUSIONS, LIMITATIONS, AND

30 QUALIFICATIONS.—The provisions of the Federal Acquisition Regulation 

31 implementing this chapter may establish appropriate definitions, exclusions, 

32 limitations, and qualifications. A submission by a contractor of costs that 

33 are incurred by the contractor and that are claimed to be allowable under 

34 Department of Energy management and operating contracts shall be consid35 ered a proposal for settlement of indirect costs incurred by the contractor 

36 for any period after those costs have been accrued. 

37 § 4305. Required regulations 

38 (a) IN GENERAL.—The Federal Acquisition Regulation shall contain pro39 visions on the allowability of contractor costs. Those provisions shall define 

40 in detail and in specific terms the costs that are unallowable, in whole or 

41 in part, under covered contracts. 


hsrobinson on PROD1PC76 with BILLS
141 

HR 1107 RH 

1 (b) SPECIFIC ITEMS.—The regulations shall, at a minimum, clarify the 

2 cost principles applicable to contractor costs of the following: 

3 (1) Air shows. 

4 (2) Membership in civic, community, and professional organizations. 

5 (3) Recruitment. 

6 (4) Employee morale and welfare. 

7 (5) Actions to influence (directly or indirectly) executive branch ac8 tion on regulatory and contract matters (other than costs incurred in 

9 regard to contract proposals pursuant to solicited or unsolicited bids). 

10 (6) Community relations. 

11 (7) Dining facilities. 

12 (8) Professional and consulting services, including legal services. 

13 (9) Compensation. 

14 (10) Selling and marketing. 

15 (11) Travel. 

16 (12) Public relations. 

17 (13) Hotel and meal expenses. 

18 (14) Expense of corporate aircraft. 

19 (15) Company-furnished automobiles. 

20 (16) Advertising. 

21 (17) Conventions. 

22 (c) ADDITIONAL REQUIREMENTS.— 

23 (1) WHEN QUESTIONED COSTS MAY BE RESOLVED.—The Federal 

24 Acquisition Regulation shall require that a contracting officer not re25 solve any questioned costs until the contracting officer has obtained— 

26 (A) adequate documentation of those costs; and 

27 (B) the opinion of the contract auditor on the allowability of 

28 those costs. 

29 (2) PRESENCE OF CONTRACT AUDITOR.—The Federal Acquisition 

30 Regulation shall provide that, to the maximum extent practicable, a 

31 contract auditor be present at any negotiation or meeting with the con32 tractor regarding a determination of the allowability of indirect costs 

33 of the contractor. 

34 (3) SETTLEMENT TO REFLECT AMOUNT OF INDIVIDUAL QUES35 TIONED COSTS.—The Federal Acquisition Regulation shall require that 

36 all categories of costs designated in the report of a contract auditor as 

37 questioned with respect to a proposal for settlement be resolved in a 

38 manner so that the amount of the individual questioned costs that are 

39 paid will be reflected in the settlement. 


hsrobinson on PROD1PC76 with BILLS
142 

HR 1107 RH 

1 § 4306. Applicability of regulations to subcontractors 

2 The regulations referred to in sections 4304 and 4305(a) and (b) of this 

3 title shall require prime contractors of a covered contract, to the maximum 

4 extent practicable, to apply the provisions of those regulations to all sub5 contractors of the covered contract. 

6 § 4307. Contractor certification 

7 (a) CONTENT AND FORM.—A proposal for settlement of indirect costs ap8 plicable to a covered contract shall include a certification by an official of 

9 the contractor that, to the best of the certifying official’s knowledge and be10 lief, all indirect costs included in the proposal are allowable. The certifi11 cation shall be in a form prescribed in the Federal Acquisition Regulation. 

12 (b) WAIVER.—An executive agency may, in an exceptional case, waive the 

13 requirement for certification under subsection (a) in the case of a contract 

14 if the agency— 

15 (1) determines that it would be in the interest of the Federal Gov16 ernment to waive the certification; and 

17 (2) states in writing the reasons for the determination and makes 

18 the determination available to the public. 

19 § 4308. Penalties for submission of cost known to be unal20 lowable 

21 The submission to an executive agency of a proposal for settlement of 

22 costs for any period after those costs have been accrued that includes a cost 

23 that is expressly specified by statute or regulation as being unallowable, 

24 with the knowledge that the cost is unallowable, is subject to section 287 

25 of title 18 and section 3729 of title 31. 

26 § 4309. Burden of proof on contractor 

27 In a proceeding before a board of contract appeals, the United States 

28 Court of Federal Claims, or any other Federal court in which the reason29 ableness of indirect costs for which a contractor seeks reimbursement from 

30 the Federal Government is in issue, the burden of proof is on the contractor 

31 to establish that those costs are reasonable. 

32 § 4310. Proceeding costs not allowable 

33 (a) DEFINITIONS.—In this section: 

34 (1) COSTS.—The term ‘‘costs’’, with respect to a proceeding, means 

35 all costs incurred by a contractor, whether before or after the com36 mencement of the proceeding, including— 

37 (A) administrative and clerical expenses; 

38 (B) the cost of legal services, including legal services performed 

39 by an employee of the contractor; 

40 (C) the cost of the services of accountants and consultants re41 tained by the contractor; and 


hsrobinson on PROD1PC76 with BILLS
143 

HR 1107 RH 

1 (D) the pay of directors, officers, and employees of the con2 tractor for time devoted by those directors, officers, and employees 

3 to the proceeding. 

4 (2) PENALTY.—The term ‘‘penalty’’ does not include restitution, re5 imbursement, or compensatory damages. 

6 (3) PROCEEDING.—The term ‘‘proceeding’’ includes an investigation. 

7 (b) IN GENERAL.—Except as otherwise provided in this section, costs in8 curred by a contractor in connection with a criminal, civil, or administrative 

9 proceeding commenced by the Federal Government or a State are not allow10 able as reimbursable costs under a covered contract if the proceeding— 

11 (1) relates to a violation of, or failure to comply with, a Federal or 

12 State statute or regulation; and 

13 (2) results in a disposition described in subsection (c). 

14 (c) COVERED DISPOSITIONS.—A disposition referred to in subsection 

15 (b)(2) is any of the following: 

16 (1) In a criminal proceeding, a conviction (including a conviction 

17 pursuant to a plea of nolo contendere) by reason of the violation or 

18 failure referred to in subsection (b). 

19 (2) In a civil or administrative proceeding involving an allegation of 

20 fraud or similar misconduct, a determination of contractor liability on 

21 the basis of the violation or failure referred to in subsection (b). 

22 (3) In any civil or administrative proceeding, the imposition of a 

23 monetary penalty by reason of the violation or failure referred to in 

24 subsection (b). 

25 (4) A final decision to do any of the following, by reason of the viola26 tion or failure referred to in subsection (b): 

27 (A) Debar or suspend the contractor. 

28 (B) Rescind or void the contract. 

29 (C) Terminate the contract for default. 

30 (5) A disposition of the proceeding by consent or compromise if the 

31 disposition could have resulted in a disposition described in paragraph 

32 (1), (2), (3), or (4). 

33 (d) COSTS ALLOWED BY SETTLEMENT AGREEMENT IN PROCEEDING

34 COMMENCED BY FEDERAL GOVERNMENT.—In the case of a proceeding re35 ferred to in subsection (b) that is commenced by the Federal Government 

36 and is resolved by consent or compromise pursuant to an agreement entered 

37 into by a contractor and the Federal Government, the costs incurred by the 

38 contractor in connection with the proceeding that are otherwise not allow39 able as reimbursable costs under subsection (b) may be allowed to the extent 

40 specifically provided in that agreement. 


hsrobinson on PROD1PC76 with BILLS
144 

HR 1107 RH 

1 (e) COSTS SPECIFICALLY AUTHORIZED BY EXECUTIVE AGENCY IN PRO2 CEEDING COMMENCED BY STATE.—In the case of a proceeding referred to 

3 in subsection (b) that is commenced by a State, the executive agency that 

4 awarded the covered contract involved in the proceeding may allow the costs 

5 incurred by the contractor in connection with the proceeding as reimburs6 able costs if the executive agency determines, in accordance with the Fed7 eral Acquisition Regulation, that the costs were incurred as a result of— 

8 (1) a specific term or condition of the contract; or 

9 (2) specific written instructions of the executive agency. 

10 (f) OTHER ALLOWABLE COSTS.— 

11 (1) IN GENERAL.—Except as provided in paragraph (3), costs in12 curred by a contractor in connection with a criminal, civil, or adminis13 trative proceeding commenced by the Federal Government or a State 

14 in connection with a covered contract may be allowed as reimbursable 

15 costs under the contract if the costs are not disallowable under sub16 section (b), but only to the extent provided in paragraph (2). 

17 (2) AMOUNT OF ALLOWABLE COSTS.— 

18 (A) MAXIMUM AMOUNT ALLOWED.—The amount of the costs al19 lowable under paragraph (1) in any case may not exceed the 

20 amount equal to 80 percent of the amount of the costs incurred, 

21 to the extent that the costs are determined to be otherwise allow22 able and allocable under the Federal Acquisition Regulation. 

23 (B) CONTENT OF REGULATIONS.—Regulations issued for the 

24 purpose of subparagraph (A) shall provide for appropriate consid25 eration of the complexity of procurement litigation, generally ac26 cepted principles governing the award of legal fees in civil actions 

27 involving the Federal Government as a party, and other factors as 

28 may be appropriate. 

29 (3) WHEN OTHERWISE ALLOWABLE COSTS ARE NOT ALLOWABLE.— 

30 In the case of a proceeding referred to in paragraph (1), contractor 

31 costs otherwise allowable as reimbursable costs under this subsection 

32 are not allowable if— 

33 (A) the proceeding involves the same contractor misconduct al34 leged as the basis of another criminal, civil, or administrative pro35 ceeding; and 

36 (B) the costs of the other proceeding are not allowable under 

37 subsection (b). 

38 CHAPTER 45—CONTRACT FINANCING 

Sec. 

4501. Authority of executive agency. 

4502. Payment. 

4503. Security for advance payments. 

4504. Conditions for progress payments. 


hsrobinson on PROD1PC76 with BILLS
145 

HR 1107 RH 

4505. Payments for commercial items. 

4506. Action in case of fraud. 

1 § 4501. Authority of executive agency 

2 An executive agency may— 

3 (1) make advance, partial, progress or other payments under con4 tracts for property or services made by the agency; and 

5 (2) insert in solicitations for procurement of property or services a 

6 provision limiting to small business concerns advance or progress pay7 ments. 

8 § 4502. Payment 

9 (a) BASIS FOR PAYMENT.—When practicable, payments under section 

10 4501 of this title shall be made on any of the following bases: 

11 (1) Performance measured by objective, quantifiable methods such as 

12 delivery of acceptable items, work measurement, or statistical process 

13 controls. 

14 (2) Accomplishment of events defined in the program management 

15 plan. 

16 (3) Other quantifiable measures of results. 

17 (b) PAYMENT AMOUNT.—Payments made under section 4501 of this title 

18 may not exceed the unpaid contract price. 

19 § 4503. Security for advance payments 

20 Advance payments under section 4501 of this title may be made only on 

21 adequate security and a determination by the agency head that to do so 

22 would be in the public interest. The security may be in the form of a lien 

23 in favor of the Federal Government on the property contracted for, on the 

24 balance in an account in which the payments are deposited, and on such 

25 of the property acquired for performance of the contract as the parties may 

26 agree. This lien shall be paramount to all other liens and is effective imme27 diately upon the first advancement of funds without filing, notice, or any 

28 other action by the Federal Government. 

29 § 4504. Conditions for progress payments 

30 (a) PAYMENT COMMENSURATE WITH WORK.—The executive agency shall 

31 ensure that a payment for work in progress (including materials, labor, and 

32 other items) under a contract of an executive agency that provides for those 

33 payments is commensurate with the work accomplished that meets stand34 ards established under the contract. The contractor shall provide informa35 tion and evidence the executive agency determines is necessary to permit the 

36 executive agency to carry out this subsection. 

37 (b) LIMITATION.—The executive agency shall ensure that progress pay38 ments referred to in subsection (a) are not made for more than 80 percent 

39 of the work accomplished under the contract as long as the executive agency 

40 has not made the contractual terms, specifications, and price definite. 


hsrobinson on PROD1PC76 with BILLS
146 

HR 1107 RH 

1 (c) APPLICATION.—This section applies to a contract in an amount great2 er than $25,000. 

3 § 4505. Payments for commercial items 

4 (a) TERMS AND CONDITIONS FOR PAYMENTS.—Payments under section 

5 4501 of this title for commercial items may be made under terms and condi6 tions that the head of the executive agency determines are appropriate or 

7 customary in the commercial marketplace and are in the best interests of 

8 the Federal Government. 

9 (b) SECURITY FOR PAYMENTS.—The head of the executive agency shall 

10 obtain adequate security for the payments. If the security is in the form 

11 of a lien in favor of the Federal Government, the lien is paramount to all 

12 other liens and is effective immediately on the first payment, without filing, 

13 notice, or other action by the Federal Government. 

14 (c) LIMITATION ON ADVANCE PAYMENTS.—Advance payments made 

15 under section 4501 of this title for commercial items may include payments, 

16 in a total amount not more than 15 percent of the contract price, in ad17 vance of any performance of work under the contract. 

18 (d) NONAPPLICATION OF CERTAIN CONDITIONS.—The conditions of sec19 tions 4503 and 4504 of this title need not be applied if they would be incon20 sistent, as determined by the head of the executive agency, with commercial 

21 terms and conditions pursuant to this section. 

22 § 4506. Action in case of fraud 

23 (a) DEFINITION.—In this section, the term ‘‘remedy coordination offi24 cial’’, with respect to an executive agency, means the individual or entity 

25 in that executive agency who coordinates within that executive agency the 

26 administration of criminal, civil, administrative, and contractual remedies 

27 resulting from investigations of fraud or corruption related to procurement 

28 activities. 

29 (b) RECOMMENDATION TO REDUCE OR SUSPEND PAYMENTS.—In any 

30 case in which the remedy coordination official of an executive agency finds 

31 that there is substantial evidence that the request of a contractor for ad32 vance, partial, or progress payment under a contract awarded by that execu33 tive agency is based on fraud, the remedy coordination official shall rec34 ommend that the executive agency reduce or suspend further payments to 

35 that contractor. 

36 (c) REDUCTION OR SUSPENSION OF PAYMENTS.—The head of an execu37 tive agency receiving a recommendation under subsection (b) in the case of 

38 a contractor’s request for payment under a contract shall determine whether 

39 there is substantial evidence that the request is based on fraud. On making 

40 an affirmative determination, the head of the executive agency may reduce 

41 or suspend further payments to the contractor under the contract. 


hsrobinson on PROD1PC76 with BILLS
147 

HR 1107 RH 

1 (d) EXTENT OF REDUCTION OR SUSPENSION.—The extent of any reduc2 tion or suspension of payments by an executive agency under subsection (c) 

3 on the basis of fraud shall be reasonably commensurate with the anticipated 

4 loss to the Federal Government resulting from the fraud. 

5 (e) WRITTEN JUSTIFICATION.—A written justification for each decision 

6 of the head of an executive agency whether to reduce or suspend payments 

7 under subsection (c), and for each recommendation received by the executive 

8 agency in connection with the decision, shall be prepared and be retained 

9 in the files of the executive agency. 

10 (f) NOTICE.—The head of each executive agency shall prescribe proce11 dures to ensure that, before the head of the executive agency decides to re12 duce or suspend payments in the case of a contractor under subsection (c), 

13 the contractor is afforded notice of the proposed reduction or suspension 

14 and an opportunity to submit matters to the executive agency in response 

15 to the proposed reduction or suspension. 

16 (g) REVIEW.—Not later than 180 days after the date on which the head 

17 of an executive agency reduces or suspends payments to a contractor under 

18 subsection (c), the remedy coordination official of the executive agency 

19 shall— 

20 (1) review the determination of fraud on which the reduction or sus21 pension is based; and 

22 (2) transmit a recommendation to the head of the executive agency 

23 whether the suspension or reduction should continue. 

24 (h) REPORT.—The head of each executive agency who receives rec25 ommendations made by the remedy coordination official of the executive 

26 agency to reduce or suspend payments under subsection (c) during a fiscal 

27 year shall prepare for that year a report that contains the recommendations, 

28 the actions taken on the recommendations and the reasons for those actions, 

29 and an assessment of the effects of those actions on the Federal Govern30 ment. The report shall be available to any Member of Congress on request. 

31 (i) RESTRICTION ON DELEGATION.—The head of an executive agency 

32 may not delegate responsibilities under this section to an individual in a po33 sition below level IV of the Executive Schedule. 

34 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. 


hsrobinson on PROD1PC76 with BILLS
148 

HR 1107 RH 

4710. Limitations on tiering of subcontractors. 

4711. Linking of award and incentive fees to acquisition outcomes. 

1 § 4701. Determinations and decisions 

2 (a) INDIVIDUAL OR CLASS DETERMINATIONS AND DECISIONS AUTHOR3 IZED.— 

4 (1) IN GENERAL.—Determinations and decisions required to be made 

5 under this division by the head of an executive agency or provided in 

6 this division or chapters 1 to 11 of title 40 to be made by the Adminis7 trator of General Services or other agency head may be made for an 

8 individual purchase or contract or, except for determinations or deci9 sions made under sections 3105, 3301, 3303 to 3305, 3306(a)–(e), and 

10 3308, chapter 37, and section 4702 of this title or to the extent ex11 pressly prohibited by another law, for a class of purchases or contracts. 

12 (2) DELEGATION.—Except as provided in section 3304(a)(7) of this 

13 title, and except as provided in section 121(d)(1) and (2) of title 40 

14 with respect to the Administrator of General Services, the agency head, 

15 in the discretion and subject to the direction of the agency head, may 

16 delegate powers provided by this division or chapters 1 to 11 of title 

17 40, including the making of determinations and decisions described in 

18 paragraph (1), to other officers or officials of the agency. 

19 (3) FINALITY.—The determinations and decisions are final. 

20 (b) WRITTEN FINDINGS.— 

21 (1) BASIS FOR CERTAIN DETERMINATIONS.—Each determination or 

22 decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this title 

23 shall be based on a written finding by the individual making the deter24 mination or decision. A finding under section 4503 or 4706(d)(2)(B) 

25 shall set out facts and circumstances that support the determination 

26 or decision. 

27 (2) FINALITY.—Each finding referred to in paragraph (1) is final. 

28 (3) MAINTAINING COPIES OF FINDINGS.—The head of an executive 

29 agency shall maintain for a period of not less than 6 years a copy of 

30 each finding referred to in paragraph (1) that is made by an individual 

31 in that executive agency. The period begins on the date of the deter32 mination or decision to which the finding relates. 

33 § 4702. Prohibition on release of contractor proposals 

34 (a) DEFINITION.—In this section, the term ‘‘proposal’’ means a proposal, 

35 including a technical, management, or cost proposal, submitted by a con36 tractor in response to the requirements of a solicitation for a competitive 

37 proposal. 

38 (b) PROHIBITION.—A proposal in the possession or control of an execu39 tive agency may not be made available to any person under section 552 of 

40 title 5. 


hsrobinson on PROD1PC76 with BILLS
149 

HR 1107 RH 

1 (c) NONAPPLICATION.—Subsection (b) does not apply to a proposal that 

2 is set forth or incorporated by reference in a contract entered into between 

3 the agency and the contractor that submitted the proposal. 

4 § 4703. Validation of proprietary data restrictions 

5 (a) CONTRACT THAT PROVIDES FOR DELIVERY OF TECHNICAL DATA.— 

6 A contract for property or services entered into by an executive agency that 

7 provides for the delivery of technical data shall provide that— 

8 (1) a contractor or subcontractor at any tier shall be prepared to 

9 furnish to the contracting officer a written justification for any restric10 tion the contractor or subcontractor asserts on the right of the Federal 

11 Government to use the data; and 

12 (2) the contracting officer may review the validity of a restriction the 

13 contractor or subcontractor asserts under the contract on the right of 

14 the Federal Government to use technical data furnished to the Federal 

15 Government under the contract if the contracting officer determines 

16 that reasonable grounds exist to question the current validity of the as17 serted restriction and that the continued adherence to the asserted re18 striction by the Federal Government would make it impracticable to 

19 procure the item competitively at a later time. 

20 (b) CHALLENGE OF RESTRICTION.—If after a review the contracting offi21 cer determines that a challenge to the asserted restriction is warranted, the 

22 contracting officer shall provide written notice to the contractor or subcon23 tractor asserting the restriction. The notice shall state— 

24 (1) the grounds for challenging the asserted restriction; and 

25 (2) the requirement for a response within 60 days justifying the cur26 rent validity of the asserted restriction. 

27 (c) ADDITIONAL TIME FOR RESPONSES.—If a contractor or subcontractor 

28 asserting a restriction subject to this section submits to the contracting offi29 cer a written request showing the need for additional time to comply with 

30 the requirement to justify the current validity of the asserted restriction, the 

31 contracting officer shall provide appropriate additional time to adequately 

32 permit the justification to be submitted. 

33 (d) MULTIPLE CHALLENGES.—If a party asserting a restriction receives 

34 notices of challenges to restrictions on technical data from more than one 

35 contracting officer, and notifies each contracting officer of the existence of 

36 more than one challenge, the contracting officer initiating the earliest chal37 lenge, after consultation with the party asserting the restriction and the 

38 other contracting officers, shall formulate a schedule of responses to each 

39 of the challenges that will afford the party asserting the restriction with an 

40 equitable opportunity to respond to each challenge. 

41 (e) DECISION ON VALIDITY OF ASSERTED RESTRICTION.— 


hsrobinson on PROD1PC76 with BILLS
150 

HR 1107 RH 

1 (1) NO RESPONSE SUBMITTED.—The contracting officer shall issue 

2 a decision pertaining to the validity of the asserted restriction if the 

3 contractor or subcontractor does not submit a response under sub4 section (b). 

5 (2) RESPONSE SUBMITTED.—Within 60 days of receipt of a justifica6 tion submitted in response to the notice provided pursuant to sub7 section (b), a contracting officer shall issue a decision or notify the 

8 party asserting the restriction of the time within which a decision will 

9 be issued. 

10 (f) CLAIM DEEMED CLAIM WITHIN CHAPTER 71.—A claim pertaining to 

11 the validity of the asserted restriction that is submitted in writing to a con12 tracting officer by a contractor or subcontractor at any tier is deemed to 

13 be a claim within the meaning of chapter 71 of this title. 

14 (g) FINAL DISPOSITION OF CHALLENGE.— 

15 (1) CHALLENGE IS SUSTAINED.—If the contracting officer’s chal16 lenge to the restriction on the right of the Federal Government to use 

17 technical data is sustained on final disposition— 

18 (A) the restriction is cancelled; and 

19 (B) if the asserted restriction is found not to be substantially 

20 justified, the contractor or subcontractor, as appropriate, is liable 

21 to the Federal Government for payment of the cost to the Federal 

22 Government of reviewing the asserted restriction and the fees and 

23 other expenses (as defined in section 2412(d)(2)(A) of title 28) in24 curred by the Federal Government in challenging the asserted re25 striction, unless special circumstances would make the payment 

26 unjust. 

27 (2) CHALLENGE NOT SUSTAINED.—If the contracting officer’s chal28 lenge to the restriction on the right of the Federal Government to use 

29 technical data is not sustained on final disposition, the Federal Govern30 ment— 

31 (A) continues to be bound by the restriction; and 

32 (B) is liable for payment to the party asserting the restriction 

33 for fees and other expenses (as defined in section 2412(d)(2)(A) 

34 of title 28) incurred by the party asserting the restriction in de35 fending the asserted restriction if the challenge by the Federal 

36 Government is found not to be made in good faith. 

37 § 4704. Prohibition of contractors limiting subcontractor 

38 sales directly to Federal Government 

39 (a) CONTRACT RESTRICTIONS.—Each contract for the purchase of prop40 erty or services made by an executive agency shall provide that the con41 tractor will not— 


hsrobinson on PROD1PC76 with BILLS
151 

HR 1107 RH 

1 (1) enter into an agreement with a subcontractor under the contract 

2 that has the effect of unreasonably restricting sales by the subcon3 tractor directly to the Federal Government of any item or process (in4 cluding computer software) made or furnished by the subcontractor 

5 under the contract (or any follow-on production contract); or 

6 (2) otherwise act to restrict unreasonably the ability of a subcon7 tractor to make sales described in paragraph (1) to the Federal Gov8 ernment. 

9 (b) RIGHTS UNDER LAW PRESERVED.—This section does not prohibit a 

10 contractor from asserting rights it otherwise has under law. 

11 (c) INAPPLICABILITY TO CERTAIN CONTRACTS.—This section does not 

12 apply to a contract for an amount that is not greater than the simplified 

13 acquisition threshold. 

14 (d) INAPPLICABILITY WHEN GOVERNMENT TREATED SIMILARLY TO

15 OTHER PURCHASERS.—An agreement between the contractor in a contract 

16 for the acquisition of commercial items and a subcontractor under the con17 tract that restricts sales by the subcontractor directly to persons other than 

18 the contractor may not be considered to unreasonably restrict sales by that 

19 subcontractor to the Federal Government in violation of the provision in20 cluded in the contract pursuant to subsection (a) if the agreement does not 

21 result in the Federal Government being treated differently with regard to 

22 the restriction than any other prospective purchaser of the commercial items 

23 from that subcontractor. 

24 § 4705. Protection of contractor employees from reprisal for 

25 disclosure of certain information 

26 (a) DEFINITIONS.—In this section: 

27 (1) CONTRACT.—The term ‘‘contract’’ means a contract awarded by 

28 the head of an executive agency. 

29 (2) CONTRACTOR.—The term ‘‘contractor’’ means a person awarded 

30 a contract with an executive agency. 

31 (3) INSPECTOR GENERAL.—The term ‘‘Inspector General’’ means an 

32 Inspector General appointed under the Inspector General Act of 1978 

33 (5 U.S.C. App.). 

34 (b) PROHIBITION OF REPRISALS.—An employee of a contractor may not 

35 be discharged, demoted, or otherwise discriminated against as a reprisal for 

36 disclosing to a Member of Congress or an authorized official of an executive 

37 agency or the Department of Justice information relating to a substantial 

38 violation of law related to a contract (including the competition for, or nego39 tiation of, a contract). 

40 (c) INVESTIGATION OF COMPLAINTS.—An individual who believes that the 

41 individual has been subjected to a reprisal prohibited by subsection (b) may 


hsrobinson on PROD1PC76 with BILLS
152 

HR 1107 RH 

1 submit a complaint to the Inspector General of the executive agency. Unless 

2 the Inspector General determines that the complaint is frivolous, the Inspec3 tor General shall investigate the complaint and, on completion of the inves4 tigation, submit a report of the findings of the investigation to the indi5 vidual, the contractor concerned, and the head of the agency. If the execu6 tive agency does not have an Inspector General, the duties of the Inspector 

7 General under this section shall be performed by an official designated by 

8 the head of the executive agency. 

9 (d) REMEDY AND ENFORCEMENT AUTHORITY.— 

10 (1) ACTIONS CONTRACTOR MAY BE ORDERED TO TAKE.—If the head 

11 of an executive agency determines that a contractor has subjected an 

12 individual to a reprisal prohibited by subsection (b), the head of the 

13 executive agency may take one or more of the following actions: 

14 (A) ABATEMENT.—Order the contractor to take affirmative ac15 tion to abate the reprisal. 

16 (B) REINSTATEMENT.—Order the contractor to reinstate the in17 dividual to the position that the individual held before the reprisal, 

18 together with the compensation (including back pay), employment 

19 benefits, and other terms and conditions of employment that 

20 would apply to the individual in that position if the reprisal had 

21 not been taken. 

22 (C) PAYMENT.—Order the contractor to pay the complainant an 

23 amount equal to the aggregate amount of all costs and expenses 

24 (including attorneys’ fees and expert witnesses’ fees) that the com25 plainant reasonably incurred for, or in connection with, bringing 

26 the complaint regarding the reprisal, as determined by the head 

27 of the executive agency. 

28 (2) ENFORCEMENT ORDER.—When a contractor fails to comply with 

29 an order issued under paragraph (1), the head of the executive agency 

30 shall file an action for enforcement of the order in the United States 

31 district court for a district in which the reprisal was found to have oc32 curred. In an action brought under this paragraph, the court may 

33 grant appropriate relief, including injunctive relief and compensatory 

34 and exemplary damages. 

35 (3) REVIEW OF ENFORCEMENT ORDER.—A person adversely affected 

36 or aggrieved by an order issued under paragraph (1) may obtain review 

37 of the order’s conformance with this subsection, and regulations issued 

38 to carry out this section, in the United States court of appeals for a 

39 circuit in which the reprisal is alleged in the order to have occurred. 

40 A petition seeking review must be filed no more than 60 days after the 


hsrobinson on PROD1PC76 with BILLS
153 

HR 1107 RH 

1 head of the agency issues the order. Review shall conform to chapter 

2 7 of title 5. 

3 (e) SCOPE OF SECTION.—This section does not— 

4 (1) authorize the discharge of, demotion of, or discrimination against 

5 an employee for a disclosure other than a disclosure protected by sub6 section (b); or 

7 (2) modify or derogate from a right or remedy otherwise available 

8 to the employee. 

9 § 4706. Examination of facilities and records of contractor 

10 (a) DEFINITION.—In this section, the term ‘‘records’’ includes books, doc11 uments, accounting procedures and practices, and other data, regardless of 

12 type and regardless of whether the items are in written form, in the form 

13 of computer data, or in any other form. 

14 (b) AGENCY AUTHORITY.— 

15 (1) INSPECTION OF PLANT AND AUDIT OF RECORDS.—The head of 

16 an executive agency, acting through an authorized representative, may 

17 inspect the plant and audit the records of— 

18 (A) a contractor performing a cost-reimbursement, incentive, 

19 time-and-materials, labor-hour, or price-redeterminable contract, 

20 or any combination of those contracts, the executive agency makes 

21 under this division; and 

22 (B) a subcontractor performing a cost-reimbursement, incentive, 

23 time-and-materials, labor-hour, or price-redeterminable sub24 contract, or any combination of those subcontracts, under a con25 tract referred to in subparagraph (A). 

26 (2) EXAMINATION OF RECORDS.—The head of an executive agency, 

27 acting through an authorized representative, may, for the purpose of 

28 evaluating the accuracy, completeness, and currency of certified cost or 

29 pricing data required to be submitted pursuant to chapter 35 of this 

30 title with respect to a contract or subcontract, examine all records of 

31 the contractor or subcontractor related to— 

32 (A) the proposal for the contract or subcontract; 

33 (B) the discussions conducted on the proposal; 

34 (C) pricing of the contract or subcontract; or 

35 (D) performance of the contract or subcontract. 

36 (c) SUBPOENA POWER.— 

37 (1) AUTHORITY TO REQUIRE THE PRODUCTION OF RECORDS.—The 

38 Inspector General of an executive agency appointed under section 3 or 

39 8G of the Inspector General Act of 1978 (5 U.S.C. App.) or, on re40 quest of the head of an executive agency, the Director of the Defense 

41 Contract Audit Agency (or any successor agency) of the Department 


hsrobinson on PROD1PC76 with BILLS
154 

HR 1107 RH 

1 of Defense or the Inspector General of the General Services Adminis2 tration may require by subpoena the production of records of a con3 tractor, access to which is provided for that executive agency by sub4 section (b). 

5 (2) ENFORCEMENT OF SUBPOENA.—A subpoena under paragraph 

6 (1), in the case of contumacy or refusal to obey, is enforceable by order 

7 of an appropriate United States district court. 

8 (3) AUTHORITY NOT DELEGABLE.—The authority provided by para9 graph (1) may not be delegated. 

10 (4) REPORT.—In the year following a year in which authority pro11 vided in paragraph (1) is exercised for an executive agency, the head 

12 of the executive agency shall submit to the Committee on Homeland 

13 Security and Governmental Affairs of the Senate and the Committee 

14 on Oversight and Government Reform of the House of Representatives 

15 a report on the exercise of the authority during the preceding year and 

16 the reasons why the authority was exercised in any instance. 

17 (d) AUTHORITY OF COMPTROLLER GENERAL.— 

18 (1) IN GENERAL.—Except as provided in paragraph (2), each con19 tract awarded after using procedures other than sealed bid procedures 

20 shall provide that the Comptroller General and representatives of the 

21 Comptroller General may examine records of the contractor, or any of 

22 its subcontractors, that directly pertain to, and involve transactions re23 lating to, the contract or subcontract and to interview any current em24 ployee regarding the transactions. 

25 (2) EXCEPTION FOR FOREIGN CONTRACTOR OR SUBCONTRACTOR.— 

26 Paragraph (1) does not apply to a contract or subcontract with a for27 eign contractor or foreign subcontractor if the executive agency con28 cerned determines, with the concurrence of the Comptroller General or 

29 the designee of the Comptroller General, that applying paragraph (1) 

30 to the contract or subcontract would not be in the public interest. The 

31 concurrence of the Comptroller General or the designee is not required 

32 when— 

33 (A) the contractor or subcontractor is— 

34 (i) the government of a foreign country or an agency of 

35 that government; or 

36 (ii) precluded by the laws of the country involved from 

37 making its records available for examination; and 

38 (B) the executive agency determines, after taking into account 

39 the price and availability of the property and services from United 

40 States sources, that the public interest would be best served by not 

41 applying paragraph (1). 


hsrobinson on PROD1PC76 with BILLS
155 

HR 1107 RH 

1 (3) ADDITIONAL RECORDS NOT REQUIRED.—Paragraph (1) does not 

2 require a contractor or subcontractor to create or maintain a record 

3 that the contractor or subcontractor does not maintain in the ordinary 

4 course of business or pursuant to another law. 

5 (e) LIMITATION ON AUDITS RELATING TO INDIRECT COSTS.—An execu6 tive agency may not perform an audit of indirect costs under a contract, 

7 subcontract, or modification before or after entering into the contract, sub8 contract, or modification when the contracting officer determines that the 

9 objectives of the audit can reasonably be met by accepting the results of 

10 an audit that was conducted by another department or agency of the Fed11 eral Government within one year preceding the date of the contracting offi12 cer’s determination. 

13 (f) EXPIRATION OF AUTHORITY.—The authority of an executive agency 

14 under subsection (b) and the authority of the Comptroller General under 

15 subsection (d) shall expire 3 years after final payment under the contract 

16 or subcontract. 

17 (g) INAPPLICABILITY TO CERTAIN CONTRACTS.—This section does not 

18 apply to the following contracts: 

19 (1) Contracts for utility services at rates not exceeding those estab20 lished to apply uniformly to the public, plus any applicable reasonable 

21 connection charge. 

22 (2) A contract or subcontract that is not greater than the simplified 

23 acquisition threshold. 

24 (h) ELECTRONIC FORM ALLOWED.—This section does not preclude a con25 tractor from duplicating or storing original records in electronic form. 

26 (i) ORIGINAL RECORDS NOT REQUIRED.—An executive agency shall not 

27 require a contractor or subcontractor to provide original records in an audit 

28 carried out pursuant to this section if the contractor or subcontractor pro29 vides photographic or electronic images of the original records and meets 

30 the following requirements: 

31 (1) PRESERVATION PROCEDURES ESTABLISHED.—The contractor or 

32 subcontractor has established procedures to ensure that the imaging 

33 process preserves the integrity, reliability, and security of the original 

34 records. 

35 (2) INDEXING SYSTEM MAINTAINED.—The contractor or subcon36 tractor maintains an effective indexing system to permit timely and 

37 convenient access to the imaged records. 

38 (3) ORIGINAL RECORDS RETAINED.—The contractor or subcon39 tractor retains the original records for a minimum of one year after 

40 imaging to permit periodic validation of the imaging systems. 


hsrobinson on PROD1PC76 with BILLS
156 

HR 1107 RH 

1 § 4707. Remission of liquidated damages 

2 When a contract made on behalf of the Federal Government by the head 

3 of a Federal agency, or by an authorized officer of the agency, includes a 

4 provision for liquidated damages for delay, the Secretary of the Treasury 

5 on recommendation of the head of the agency may remit any part of the 

6 damages as the Secretary of the Treasury believes is just and equitable. 

7 § 4708. Payment of reimbursable indirect costs in cost-type 

8 research and development contracts with edu9 cational institutions 

10 A cost-type research and development contract (including a grant) with 

11 a university, college, or other educational institution may provide for pay12 ment of reimbursable indirect costs on the basis of predetermined fixed-per13 centage rates applied to the total of the reimbursable direct costs incurred 

14 or to an element of the total of the reimbursable direct costs incurred. 

15 § 4709. Implementation of electronic commerce capability 

16 (a) ROLE OF HEAD OF EXECUTIVE AGENCY.—The head of each execu17 tive agency shall implement the electronic commerce capability required by 

18 section 2301 of this title. In implementing the capability, the head of an 

19 executive agency shall consult with the Administrator. 

20 (b) PROGRAM MANAGER.—The head of each executive agency shall des21 ignate a program manager to implement the electronic commerce capability 

22 for the agency. The program manager reports directly to an official at a 

23 level not lower than the senior procurement executive designated for the 

24 agency under section 1702(c) of this title. 

25 § 4710. Limitations on tiering of subcontractors 

26 (a) DEFINITION.—In this section, the term ‘‘executive agency’’ has the 

27 same meaning given in section 133 of this title. 

28 (b) REGULATIONS.—For executive agencies other than the Department of 

29 Defense, the Federal Acquisition Regulation shall— 

30 (1) require contractors to minimize the excessive use of subcontrac31 tors, or of tiers of subcontractors, that add no or negligible value; and 

32 (2) ensure that neither a contractor nor a subcontractor receives in33 direct costs or profit on work performed by a lower-tier subcontractor 

34 to which the higher-tier contractor or subcontractor adds no or neg35 ligible value (but not to limit charges for indirect costs and profit based 

36 on the direct costs of managing lower-tier subcontracts). 

37 (c) COVERED CONTRACTS.—This section applies to any cost-reimburse38 ment type contract or task or delivery order in an amount greater than the 

39 simplified acquisition threshold (as defined by section 134 of this title). 


hsrobinson on PROD1PC76 with BILLS
157 

HR 1107 RH 

1 (d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed 

2 as limiting the ability of the Department of Defense to implement more re3 strictive limitations on the tiering of subcontractors. 

4 (e) APPLICABILITY.—The Department of Defense shall continue to be 

5 subject to guidance on limitations on tiering of subcontractors issued by the 

6 Department of Defense pursuant to section 852 of the John Warner Na7 tional Defense Authorization Act for Fiscal Year 2007 (Public Law 109– 

8 364, 10 U.S.C. 2324 note). 

9 § 4711. Linking of award and incentive fees to acquisition 

10 outcomes 

11 (a) DEFINITION.—In this section, the term ‘‘executive agency’’ has the 

12 same meaning given in section 133 of this title. 

13 (b) GUIDANCE FOR EXECUTIVE AGENCIES ON LINKING OF AWARD AND

14 INCENTIVE FEES TO ACQUISITION OUTCOMES.—The Federal Acquisition 

15 Regulation shall provide executive agencies other than the Department of 

16 Defense with instructions, including definitions, on the appropriate use of 

17 award and incentive fees in Federal acquisition programs. 

18 (c) ELEMENTS.—The regulations under subsection (b) shall— 

19 (1) ensure that all new contracts using award fees link the fees to 

20 acquisition outcomes (which shall be defined in terms of program cost, 

21 schedule, and performance); 

22 (2) establish standards for identifying the appropriate level of offi23 cials authorized to approve the use of award and incentive fees in new 

24 contracts; 

25 (3) provide guidance on the circumstances in which contractor per26 formance may be judged to be ‘‘excellent’’ or ‘‘superior’’ and the per27 centage of the available award fee which contractors should be paid for 

28 the performance; 

29 (4) establish standards for determining the percentage of the avail30 able award fee, if any, which contractors should be paid for perform31 ance that is judged to be ‘‘acceptable’’, ‘‘average’’, ‘‘expected’’, ‘‘good’’, 

32 or ‘‘satisfactory’’; 

33 (5) ensure that no award fee may be paid for contractor performance 

34 that is judged to be below satisfactory performance or performance 

35 that does not meet the basic requirements of the contract; 

36 (6) provide specific direction on the circumstances, if any, in which 

37 it may be appropriate to roll over award fees that are not earned in 

38 one award fee period to a subsequent award fee period or periods; 

39 (7) ensure consistent use of guidelines and definitions relating to 

40 award and incentive fees across the Federal Government; 

41 (8) ensure that each executive agency— 


hsrobinson on PROD1PC76 with BILLS
158 

HR 1107 RH 

1 (A) collects relevant data on award and incentive fees paid to 

2 contractors; and 

3 (B) has mechanisms in place to evaluate the data on a regular 

4 basis; 

5 (9) include performance measures to evaluate the effectiveness of 

6 award and incentive fees as a tool for improving contractor perform7 ance and achieving desired program outcomes; and 

8 (10) provide mechanisms for sharing proven incentive strategies for 

9 the acquisition of different types of products and services among con10 tracting and program management officials. 

11 (d) GUIDANCE FOR DEPARTMENT OF DEFENSE.—The Department of 

12 Defense shall continue to be subject to guidance on award and incentive fees 

13 issued by the Secretary of Defense pursuant to section 814 of the John 

14 Warner National Defense Authorization Act for Fiscal Year 2007 (Public 

15 Law 109-364, 10 U.S.C. 2302 note). 

16 Subtitle II—Other Advertising and Contract 

17 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 

18 CHAPTER 61—ADVERTISING 

Sec. 

6101. Advertising requirement for Federal Government purchases and sales. 

6102. Exceptions from advertising requirement. 

6103. Opening of bids. 

19 § 6101. Advertising requirement for Federal Government 

20 purchases and sales 

21 (a) DEFINITIONS.—In this section— 

22 (1) APPROPRIATION.—The term ‘‘appropriation’’ includes amounts 

23 made available by legislation under section 9104 of title 31. 

24 (2) FEDERAL GOVERNMENT.—The term ‘‘Federal Government’’ in25 cludes the government of the District of Columbia. 

26 (b) PURCHASES.— 

27 (1) IN GENERAL.—Unless otherwise provided in the appropriation 

28 concerned or other law, purchases and contracts for supplies or services 

29 for the Federal Government may be made or entered into only after 

30 advertising for proposals for a sufficient time. 

31 (2) LIMITATIONS ON APPLICABILITY.—Paragraph (1) does not apply 

32 when— 

33 (A) the amount involved in any one case does not exceed 

34 $25,000; 


hsrobinson on PROD1PC76 with BILLS
159 

HR 1107 RH 

1 (B) public exigencies require the immediate delivery of articles 

2 or performance of services; 

3 (C) only one source of supply is available and the Federal Gov4 ernment purchasing or contracting officer so certifies; or 

5 (D) services are required to be performed by a contractor in 

6 person and are— 

7 (i) of a technical and professional nature; or 

8 (ii) under Federal Government supervision and paid for on 

9 a time basis. 

10 (c) SALES.—Except when otherwise authorized by law or when the rea11 sonable value involved in any one case does not exceed $500, sales and con12 tracts of sale by the Federal Government are governed by the requirements 

13 of this section for advertising. 

14 (d) APPLICATION TO WHOLLY OWNED GOVERNMENT CORPORATIONS.— 

15 For wholly owned Government corporations, this section applies only to ad16 ministrative transactions. 

17 § 6102. Exceptions from advertising requirement 

18 (a) AMERICAN BATTLE MONUMENTS COMMISSION.—Section 6101 of this 

19 title does not apply to the American Battle Monuments Commission with 

20 respect to leases in foreign countries for office or garage space. 

21 (b) BUREAU OF INTERPARLIAMENTARY UNION FOR PROMOTION OF

22 INTERNATIONAL ARBITRATION.—Section 6101 of this title does not apply 

23 to the Bureau of Interparliamentary Union for Promotion of International 

24 Arbitration with respect to necessary stenographic reporting services by con25 tract. 

26 (c) DEPARTMENT OF STATE.—Section 6101 of this title does not apply 

27 to the Department of State when the purchase or service relates to the 

28 packing of personal and household effects of Diplomatic, Consular, and For29 eign Service officers and clerks for foreign shipment. 

30 (d) INTERNATIONAL COMMITTEE OF AERIAL LEGAL EXPERTS.—Section 

31 6101 of this title does not apply to the International Committee of Aerial 

32 Legal Experts with respect to necessary stenographic and other services by 

33 contract. 

34 (e) ARCHITECT OF THE CAPITOL.—The purchase of supplies and equip35 ment and the procurement of services for all branches under the Architect 

36 of the Capitol may be made in the open market according to common busi37 ness practice, without compliance with section 6101 of this title, when the 

38 aggregate amount of the purchase or the service does not exceed $25,000 

39 in any instance. 

40 (f) FOREST PRODUCTS FROM INDIAN RESERVATIONS.—Lumber and 

41 other forest products produced by Indian enterprises from forests on Indian 


hsrobinson on PROD1PC76 with BILLS
160 

HR 1107 RH 

1 reservations may be sold under regulations the Secretary of the Interior pre2 scribes, without compliance with section 6101 of this title. 

3 (g) HOUSE OF REPRESENTATIVES.—Section 6101 of this title does not 

4 apply to purchases and contracts for supplies or services for any office of 

5 the House of Representatives. 

6 (h) CONGRESSIONAL BUDGET OFFICE.—The Director of the Congres7 sional Budget Office may enter into agreements or contracts without regard 

8 to section 6101 of this title. 

9 § 6103. Opening of bids 

10 Whenever proposals for supplies have been solicited, the parties respond11 ing to the solicitation shall be notified of the time and place of the opening 

12 of the bids, and be permitted to be present either in person or by attorney. 

13 A record of each bid shall be made at the time and place of the opening 

14 of the bids. 

15 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. 

16 § 6301. Authorization requirement 

17 (a) IN GENERAL.—A contract or purchase on behalf of the Federal Gov18 ernment shall not be made unless the contract or purchase is authorized by 

19 law or is under an appropriation adequate to its fulfillment. 

20 (b) EXCEPTION.— 

21 (1) DEFINITION.—In this subsection, the term ‘‘defined Secretary’’ 

22 means— 

23 (A) the Secretary of Defense; or 

24 (B) the Secretary of Homeland Security with respect to the 

25 Coast Guard when the Coast Guard is not operating as a service 

26 in the Navy. 

27 (2) IN GENERAL.—Subsection (a) does not apply to a contract or 

28 purchase made by a defined Secretary for clothing, subsistence, forage, 

29 fuel, quarters, transportation, or medical and hospital supplies. 

30 (3) CURRENT YEAR LIMITATION.—A contract or purchase made by 

31 a defined Secretary under this subsection may not exceed the neces32 sities of the current year. 

33 (4) REPORTS.—The defined Secretary shall immediately advise Con34 gress when authority is exercised under this subsection. The defined 


hsrobinson on PROD1PC76 with BILLS
161 

HR 1107 RH 

1 Secretary shall report quarterly on the estimated obligations incurred 

2 pursuant to the authority granted in this subsection. 

3 (c) SPECIAL RULE FOR PURCHASE OF LAND.—Land may not be pur4 chased by the Federal Government unless the purchase is authorized by law. 

5 § 6302. Contracts for fuel made by Secretary of the Army 

6 The Secretary of the Army, when the Secretary believes it is in the inter7 est of the United States, may enter into contracts and incur obligations for 

8 fuel in sufficient quantities to meet the requirements for one year without 

9 regard to the current fiscal year. Amounts appropriated for the fiscal year 

10 in which the contract is made or amounts appropriated or which may be 

11 appropriated for the following fiscal year may be used to pay for supplies 

12 delivered under a contract made pursuant to this section. 

13 § 6303. Certain contracts limited to appropriated amounts 

14 A contract to erect, repair, or furnish a public building, or to make any 

15 public improvement, shall not be made on terms requiring the Federal Gov16 ernment to pay more than the amount specifically appropriated for the ac17 tivity covered by the contract. 

18 § 6304. Certain contracts limited to one-year term 

19 Except as otherwise provided, an executive department shall not make a 

20 contract for stationery or other supplies for a term longer than one year 

21 from the time the contract is made. 

22 § 6305. Prohibition on transfer of contract and certain al23 lowable assignments 

24 (a) GENERAL PROHIBITION ON TRANSFER OF CONTRACTS.—The party 

25 to whom the Federal Government gives a contract or order may not transfer 

26 the contract or order, or any interest in the contract or order, to another 

27 party. A purported transfer in violation of this subsection annuls the con28 tract or order so far as the Federal Government is concerned, except that 

29 all rights of action for breach of contract are reserved to the Federal Gov30 ernment. 

31 (b) ASSIGNMENT.— 

32 (1) IN GENERAL.—Notwithstanding subsection (a) and in accordance 

33 with the requirements of this subsection, amounts due from the Fed34 eral Government under a contract may be assigned to a bank, trust 

35 company, Federal lending agency, or other financing institution. 

36 (2) MINIMUM AMOUNT.—This subsection applies only to a contract 

37 under which the aggregate amounts due from the Federal Government 

38 total at least $1,000. 

39 (3) ACCORD WITH CONTRACT TERMS.—Assignment may not be made 

40 under this subsection if the contract forbids the assignment. 


hsrobinson on PROD1PC76 with BILLS
162 

HR 1107 RH 

1 (4) FULL BALANCE DUE.—Unless otherwise expressly permitted by 

2 the contract, an assignment under this subsection must cover the bal3 ance of all amounts due from the Federal Government under the con4 tract. 

5 (5) SINGLE ASSIGNMENT.—Unless otherwise expressly permitted by 

6 the contract, an assignment under this subsection may not be made to 

7 more than one party or be subject to further assignment, except that 

8 assignment may be made to one party as agent or trustee for 2 or 

9 more parties participating in the financing. 

10 (6) WRITTEN NOTICE.—The assignee of an assignment under this 

11 subsection shall file written notice of the assignment and a true copy 

12 of the instrument of assignment with— 

13 (A) the contracting officer or head of the officer’s department 

14 or agency; 

15 (B) the surety on any bond connected with the contract; and 

16 (C) the disbursing officer, if any, designated in the contract to 

17 make payment. 

18 (7) VALIDITY.—Notwithstanding any law to the contrary governing 

19 the validity of assignments, an assignment under this subsection is a 

20 valid assignment for all purposes. 

21 (8) NO REFUND TO COVER ASSIGNOR’S LIABILITY.—The assignee of 

22 an assignment under this subsection is not liable to make any refund 

23 to the Federal Government because of an assignor’s liability to the 

24 Federal Government, whether that liability arises from the contract or 

25 independently. 

26 (9) AVOIDING REDUCTION OR SETOFF WITH CERTAIN CONTRACTS.— 

27 (A) CONTRACT PROVISION.—A contract of the Department of 

28 Defense, the General Services Administration, the Department of 

29 Energy, or another department or agency of the Federal Govern30 ment designated by the President may, on a determination of need 

31 by the President, provide or be amended without consideration to 

32 provide that payments made to an assignee under the contract are 

33 not subject to reduction or setoff. Each determination of need by 

34 the President under this subparagraph shall be published in the 

35 Federal Register. 

36 (B) CARRYING OUT CONTRACT PROVISION.—When a ‘‘no reduc37 tion or setoff’’ provision as described in subparagraph (A) is in38 cluded in a contract, payments to the assignee are not subject to 

39 reduction or setoff for an assignor’s liability arising— 

40 (i) independently of the contract; 


hsrobinson on PROD1PC76 with BILLS
163 

HR 1107 RH 

1 (ii) on account of renegotiation under a renegotiation stat2 ute or under a statutory renegotiation article in the contract; 

3 (iii) on account of fines; 

4 (iv) on account of penalties; or 

5 (v) on account of taxes, social security contributions, or the 

6 withholding or non-withholding of taxes or social security con7 tributions, whether arising from or independently of the con8 tract. 

9 (C) LIMITATION.—Subparagraph (B)(iv) does not apply to 

10 amounts which may be collected or withheld from the assignor in 

11 accordance with or for failure to comply with the terms of the con12 tract. 

13 § 6306. Prohibition on Members of Congress making con14 tracts with Federal Government 

15 (a) IN GENERAL.—A Member of Congress may not enter into or benefit 

16 from a contract or agreement or any part of a contract or agreement with 

17 the Federal Government. 

18 (b) EXEMPTIONS.— 

19 (1) IN GENERAL.—Subsection (a) does not apply to contracts that 

20 the Secretary of Agriculture may enter into with farmers. 

21 (2) CERTAIN ACTS.—Subsection (a) does not apply to a contract en22 tered into under— 

23 (A) the Agricultural Adjustment Act (7 U.S.C. 601 et seq.); 

24 (B) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); or 

25 (C) the Home Owners’ Loan Act (12 U.S.C. 1461 et seq.). 

26 (3) PUBLIC RECORD.—An exemption under this subsection shall be 

27 made a matter of public record. 

28 § 6307. Contracts with Federal Government-owned estab29 lishments and availability of appropriations 

30 An order or contract placed with a Federal Government-owned establish31 ment for work, material, or the manufacture of material pertaining to an 

32 approved project is deemed to be an obligation in the same manner that 

33 a similar order or contract placed with a commercial manufacturer or pri34 vate contractor is an obligation. Appropriations remain available to pay an 

35 obligation to a Federal Government-owned establishment just as appropria36 tions remain available to pay an obligation to a commercial manufacturer 

37 or private contractor. 


hsrobinson on PROD1PC76 with BILLS
164 

HR 1107 RH 

1 § 6308. Contracts for transportation of Federal Government 

2 securities 

3 When practicable, a contract for transporting bullion, cash, or securities 

4 of the Federal Government shall be awarded to the lowest responsible bidder 

5 after notice to all parties with means of transportation. 

6 § 6309. Honorable discharge certificate in lieu of birth cer7 tificate 

8 (a) IN GENERAL.—An employer described in subsection (b) may not deny 

9 employment, on account of failure to produce a birth certificate, to an indi10 vidual who submits, in lieu of the birth certificate, an honorable discharge 

11 certificate (or certificate issued in lieu of an honorable discharge certificate) 

12 from the Army, Air Force, Navy, Marine Corps, or Coast Guard of the 

13 United States, unless the honorable discharge certificate shows on its face 

14 that the individual may have been an alien at the time of its issuance. 

15 (b) EMPLOYERS TO WHICH SECTION APPLIES.—An employer referred to 

16 in subsection (a) is an employer— 

17 (1) engaged in— 

18 (A) the production, maintenance, or storage of arms, armament, 

19 ammunition, implements of war, munitions, machinery, tools, 

20 clothing, food, fuel, or any articles or supplies, or parts or ingredi21 ents of any articles or supplies; or 

22 (B) the construction, reconstruction, repair, or installation of a 

23 building, plant, structure, or facility; and 

24 (2) engaged in the activity described in paragraph (1) under— 

25 (A) a contract with the Federal Government; or 

26 (B) any contract that the President, the Secretary of the Army, 

27 the Secretary of the Air Force, the Secretary of the Navy, or the 

28 Secretary of the Department in which the Coast Guard is oper29 ating certifies to the employer to be necessary to the national de30 fense. 

31 CHAPTER 65—CONTRACTS FOR MATERIALS, SUPPLIES, 

32 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. 


hsrobinson on PROD1PC76 with BILLS
165 

HR 1107 RH 

1 § 6501. Definitions 

2 In this chapter— 

3 (1) AGENCY OF THE UNITED STATES.—The term ‘‘agency of the 

4 United States’’ means an executive department, independent establish5 ment, or other agency or instrumentality of the United States, the Dis6 trict of Columbia, or a corporation in which all stock is beneficially 

7 owned by the Federal Government. 

8 (2) PERSON.—The term ‘‘person’’ includes one or more individuals, 

9 partnerships, associations, corporations, legal representatives, trustees, 

10 trustees in cases under title 11, or receivers. 

11 (3) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of 

12 Labor. 

13 § 6502. Required contract terms 

14 A contract made by an agency of the United States for the manufacture 

15 or furnishing of materials, supplies, articles, or equipment, in an amount 

16 exceeding $10,000, shall include the following representations and stipula17 tions: 

18 (1) MINIMUM WAGES TO BE PAID.—All individuals employed by the 

19 contractor in the manufacture or furnishing of materials, supplies, arti20 cles, or equipment under the contract will be paid, without subsequent 

21 deduction or rebate on any account, not less than the prevailing min22 imum wages, as determined by the Secretary, for individuals employed 

23 in similar work or in the particular or similar industries or groups of 

24 industries currently operating in the locality in which the materials, 

25 supplies, articles, or equipment are to be manufactured or furnished 

26 under the contract, except that this paragraph applies only to pur27 chases or contracts relating to industries that have been the subject 

28 matter of a determination by the Secretary. 

29 (2) MAXIMUM NUMBER OF HOURS TO BE WORKED IN A WEEK.—No 

30 individual employed by the contractor in the manufacture or furnishing 

31 of materials, supplies, articles, or equipment under the contract shall 

32 be permitted to work in excess of 40 hours in any one week, except 

33 that this paragraph does not apply to an employer who has entered 

34 into an agreement with employees pursuant to paragraph (1) or (2) of 

35 section 7(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

36 207(b)(1) or (2)). 

37 (3) INELIGIBLE EMPLOYEES.—No individual under 16 years of age 

38 and no incarcerated individual will be employed by the contractor in 

39 the manufacture or furnishing of materials, supplies, articles, or equip40 ment under the contract, except that this section, or other law or exec41 utive order containing similar prohibitions against the purchase of 


hsrobinson on PROD1PC76 with BILLS
166 

HR 1107 RH 

1 goods by the Federal Government, does not apply to convict labor that 

2 satisfies the conditions of section 1761(c) of title 18. 

3 (4) STANDARDS OF PLACES AND WORKING CONDITIONS WHERE CON4 TRACT PERFORMED.—No part of the contract will be performed, and 

5 no materials, supplies, articles, or equipment will be manufactured or 

6 fabricated under the contract, in plants, factories, buildings, or sur7 roundings, or under working conditions, that are unsanitary, haz8 ardous, or dangerous to the health and safety of employees engaged in 

9 the performance of the contract. Compliance with the safety, sanitary, 

10 and factory inspection laws of the State in which the work or part of 

11 the work is to be performed is prima facie evidence of compliance with 

12 this paragraph. 

13 § 6503. Breach or violation of required contract terms 

14 (a) APPLICABLE BREACH OR VIOLATION.—This section applies in case of 

15 breach or violation of a representation or stipulation included in a contract 

16 under section 6502 of this title. 

17 (b) LIQUIDATED DAMAGES.—In addition to damages for any other breach 

18 of the contract, the party responsible for a breach or violation described in 

19 subsection (a) is liable to the Federal Government for the following liq20 uidated damages: 

21 (1) An amount equal to the sum of $10 per day for each individual 

22 under 16 years of age and each incarcerated individual knowingly em23 ployed in the performance of the contract. 

24 (2) An amount equal to the sum of each underpayment of wages due 

25 an employee engaged in the performance of the contract, including any 

26 underpayments arising from deductions, rebates, or refunds. 

27 (c) CANCELLATION AND ALTERNATIVE COMPLETION.—In addition to the 

28 Federal Government being entitled to damages described in subsection (b), 

29 the agency of the United States that made the contract may cancel the con30 tract and make open-market purchases or make other contracts for the com31 pletion of the original contract, charging any additional cost to the original 

32 contractor. 

33 (d) RECOVERY OF AMOUNTS DUE.—An amount due the Federal Govern34 ment because of a breach or violation described in subsection (a) may be 

35 withheld from any amounts owed the contractor under any contract under 

36 section 6502 of this title or may be recovered in a suit brought by the At37 torney General. 

38 (e) EMPLOYEE REIMBURSEMENT FOR UNDERPAYMENT OF WAGES.—An 

39 amount withheld or recovered under subsection (d) that is based on an un40 derpayment of wages as described in subsection (b)(2) shall be held in a 

41 special deposit account. On order of the Secretary, the amount shall be paid 


hsrobinson on PROD1PC76 with BILLS
167 

HR 1107 RH 

1 directly to the underpaid employee on whose account the amount was with2 held or recovered. However, an employee’s claim for payment under this 

3 subsection may be entertained only if made within one year from the date 

4 of actual notice to the contractor of the withholding or recovery. 

5 § 6504. Three-year prohibition on new contracts in case of 

6 breach or violation 

7 (a) DISTRIBUTION OF LIST.—The Comptroller General shall distribute to 

8 each agency of the United States a list containing the names of persons 

9 found by the Secretary to have breached or violated a representation or stip10 ulation included in a contract under section 6502 of this title. 

11 (b) THREE-YEAR PROHIBITION.—Unless the Secretary recommends oth12 erwise, a contract described in section 6502 of this title may not be awarded 

13 to a person named on the list under subsection (a), or to a firm, corpora14 tion, partnership, or association in which the person has a controlling inter15 est, until 3 years have elapsed from the date of the determination by the 

16 Secretary that a breach or violation occurred. 

17 § 6505. Exclusions 

18 (a) ITEMS AVAILABLE IN THE OPEN MARKET.—This chapter does not 

19 apply to the purchase of materials, supplies, articles, or equipment that may 

20 usually be bought in the open market. 

21 (b) PERISHABLES AND AGRICULTURAL PRODUCTS.—This chapter does 

22 not apply to any of the following: 

23 (1) Perishables, including dairy, livestock and nursery products. 

24 (2) Agricultural or farm products processed for first sale by the 

25 original producers. 

26 (3) Contracts made by the Secretary of Agriculture for the purchase 

27 of agricultural commodities or products of agricultural commodities. 

28 (c) CARRIAGE OF FREIGHT OR PERSONNEL.—This chapter may not be 

29 construed to apply to— 

30 (1) the carriage of freight or personnel by vessel, airplane, bus, 

31 truck, express, or railway line where published tariff rates are in effect; 

32 or 

33 (2) common carriers subject to the Communications Act of 1934 (47 

34 U.S.C. 151 et seq.). 

35 § 6506. Administrative provisions 

36 (a) IN GENERAL.—The Secretary shall administer this chapter. 

37 (b) REGULATIONS.—The Secretary may make, amend, and rescind regu38 lations as necessary to carry out this chapter. 

39 (c) USE OF GOVERNMENT OFFICERS AND EMPLOYEES.—The Secretary 

40 shall use Federal officers and employees and, with a State’s consent, State 


hsrobinson on PROD1PC76 with BILLS
168 

HR 1107 RH 

1 and local officers and employees as the Secretary finds necessary to assist 

2 in the administration of this chapter. 

3 (d) APPOINTMENTS.—The Secretary shall appoint an administrative offi4 cer and attorneys, experts, and other employees from time to time as the 

5 Secretary finds necessary for the administration of this chapter. The ap6 pointments are subject to chapter 51 and subchapter III of chapter 53 of 

7 title 5 and other law applicable to the employment and compensation of offi8 cers and employees of the Federal Government. 

9 (e) INVESTIGATIONS.—The Secretary, or an authorized representative of 

10 the Secretary, may make investigations and findings as provided in this 

11 chapter and may, in any part of the United States, prosecute an inquiry 

12 necessary to carry out this chapter. 

13 § 6507. Hearing authority and procedures 

14 (a) RECORD AND HEARING REQUIREMENTS FOR WAGE DETERMINA15 TIONS.—A wage determination under section 6502(1) of this title shall be 

16 made on the record after opportunity for a hearing. 

17 (b) AUTHORITY TO HOLD HEARINGS.—The Secretary or an impartial 

18 representative designated by the Secretary may hold hearings when there is 

19 a complaint of breach or violation of a representation or stipulation included 

20 in a contract under section 6502 of this title. The Secretary may initiate 

21 hearings on the Secretary’s own motion or on the application of a person 

22 affected by the ruling of an agency of the United States relating to a pro23 posal or contract under this chapter. 

24 (c) ORDERS TO COMPEL TESTIMONY.—The Secretary or an impartial 

25 representative designated by the Secretary may issue orders requiring wit26 nesses to attend hearings held under this section and to produce evidence 

27 and testify under oath. Witnesses shall be paid fees and mileage at the same 

28 rates as witnesses in courts of the United States. 

29 (d) ENFORCEMENT OF ORDERS.—If a person refuses or fails to obey an 

30 order issued under subsection (c), the Secretary or an impartial representa31 tive designated by the Secretary may bring an action to enforce the order 

32 in a district court of the United States or in the district court of a territory 

33 or possession of the United States. A court has jurisdiction to enforce the 

34 order if the inquiry is being carried out within the court’s judicial district 

35 or if the person is found or resides or transacts business within the court’s 

36 judicial district. The court may issue an order requiring the person to obey 

37 the order issued under subsection (c), and the court may punish any further 

38 refusal or failure as contempt of court. 

39 (e) FINDINGS OF FACT.—After notice and a hearing, the Secretary or an 

40 impartial representative designated by the Secretary shall make findings of 

41 fact. The findings are conclusive for agencies of the United States. If supVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00168 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
169 

HR 1107 RH 

1 ported by a preponderance of the evidence, the findings are conclusive in 

2 any court of the United States. 

3 (f) DECISIONS.—The Secretary or an impartial representative designated 

4 by the Secretary may make decisions, based on findings of fact, that are 

5 considered necessary to enforce this chapter. 

6 § 6508. Authority to make exceptions 

7 (a) DUTY OF THE SECRETARY TO MAKE EXCEPTIONS.—When the head 

8 of an agency of the United States makes a written finding that the inclusion 

9 of representations or stipulations under section 6502 of this title in a pro10 posal or contract will seriously impair the conduct of Federal Government 

11 business, the Secretary shall make exceptions, in specific cases or otherwise, 

12 when justice or the public interest will be served. 

13 (b) AUTHORITY OF THE SECRETARY TO MODIFY EXISTING CON14 TRACTS.—When an agency of the United States and a contractor jointly 

15 recommend, the Secretary may modify the terms of an existing contract 

16 with respect to minimum wages and maximum hours of labor as the Sec17 retary finds necessary and proper in the public interest or to prevent injus18 tice and undue hardship. 

19 (c) AUTHORITY OF THE SECRETARY TO ALLOW LIMITATIONS, VARI20 ATIONS, TOLERANCES, AND EXEMPTIONS.—The Secretary may provide rea21 sonable limitations and may prescribe regulations to allow reasonable vari22 ations, tolerances, and exemptions in the application of this chapter to con23 tractors, including with respect to minimum wages and maximum hours of 

24 labor. 

25 (d) RATE OF PAY FOR OVERTIME.—When the Secretary permits an in26 crease in the maximum hours of labor stipulated in a contract, the Sec27 retary shall set a rate of pay for overtime. The overtime rate must be at 

28 least one and one-half times the basic hourly rate. 

29 (e) AUTHORITY OF THE PRESIDENT TO SUSPEND.—The President may 

30 suspend any of the representations and stipulations contained in section 

31 6502 of this title whenever, in the President’s judgment, suspension is in 

32 the public interest. 

33 § 6509. Other procedures 

34 (a) APPLICABILITY OF CERTAIN ADMINISTRATIVE PROVISIONS.—Not35 withstanding section 553 of title 5, subchapter II of chapter 5 and chapter 

36 7 of title 5 are applicable in the administration of sections 6501 to 6507 

37 and 6511 of this title. 

38 (b) JUDICIAL REVIEW IN GENERAL.—Notwithstanding the inclusion of 

39 representations and stipulations in a contract under section 6502 of this 

40 title, an interested person has the right of judicial review of any legal quesVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00169 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
170 

HR 1107 RH 

1 tion which might otherwise be raised, including wage determinations and the 

2 interpretation of the terms ‘‘locality’’ and ‘‘open market’’. 

3 (c) JUDICIAL REVIEW OF WAGE DETERMINATIONS.—A person adversely 

4 affected or aggrieved by a wage determination under section 6502(1) of this 

5 title has the right of judicial review of the determination, or of the applica6 bility of the determination, within 90 days after the determination is made, 

7 in the manner provided by chapter 7 of title 5. A person adversely affected 

8 or aggrieved by a wage determination is deemed to include a person in an 

9 industry to which the determination applies that is a supplier of materials, 

10 supplies, articles, or equipment that are purchased or intended to be pur11 chased by the Federal Government from any source. 

12 § 6510. Manufacturers and regular dealers 

13 (a) PRESCRIBING STANDARDS.—The Secretary may prescribe, in regula14 tions, standards for determining whether a contractor is a manufacturer or 

15 regular dealer with respect to materials, supplies, articles, or equipment to 

16 be manufactured or furnished under, or used in the performance of, a con17 tract entered into by an agency of the United States. 

18 (b) JUDICIAL REVIEW.—An interested person has the right of judicial re19 view of any legal question relating to interpretation of the terms ‘‘regular 

20 dealer’’ and ‘‘manufacturer’’ as defined pursuant to subsection (a). 

21 § 6511. Effect on other law 

22 This chapter may not be construed to modify or amend the following pro23 visions: 

24 (1) Chapter 83 of this title. 

25 (2) Sections 3141 to 3144, 3146, and 3147 of title 40. 

26 (3) Chapter 307 of title 18. 

27 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. 

28 § 6701. Definitions 

29 In this chapter: 

30 (1) COMPENSATION.—The term ‘‘compensation’’ means any of the 

31 payments or fringe benefits described in section 6703 of this title. 

32 (2) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of 

33 Labor. 

34 (3) SERVICE EMPLOYEE.—The term ‘‘service employee’’— 

35 (A) means an individual engaged in the performance of a con36 tract made by the Federal Government and not exempted under 


hsrobinson on PROD1PC76 with BILLS
171 

HR 1107 RH 

1 section 6702(b) of this title, whether negotiated or advertised, the 

2 principal purpose of which is to furnish services in the United 

3 States; 

4 (B) includes an individual without regard to any contractual re5 lationship alleged to exist between the individual and a contractor 

6 or subcontractor; but 

7 (C) does not include an individual employed in a bona fide exec8 utive, administrative, or professional capacity, as those terms are 

9 defined in part 541 of title 29, Code of Federal Regulations. 

10 (4) UNITED STATES.—The term ‘‘United States’’— 

11 (A) includes any State of the United States, the District of Co12 lumbia, Puerto Rico, the Virgin Islands, the outer Continental 

13 Shelf as defined in the Outer Continental Shelf Lands Act (43 

14 U.S.C. § 1331 et seq.), American Samoa, Guam, Wake Island, and 

15 Johnston Island; but 

16 (B) does not include any other territory under the jurisdiction 

17 of the United States or any United States base or possession with18 in a foreign country. 

19 § 6702. Contracts to which this chapter applies 

20 (a) IN GENERAL.—Except as provided in subsection (b), this chapter ap21 plies to any contract or bid specification for a contract, whether negotiated 

22 or advertised, that— 

23 (1) is made by the Federal Government or the District of Columbia; 

24 (2) involves an amount exceeding $2,500; and 

25 (3) has as its principal purpose the furnishing of services in the 

26 United States through the use of service employees. 

27 (b) EXEMPTIONS.—This chapter does not apply to— 

28 (1) a contract of the Federal Government or the District of Colum29 bia for the construction, alteration, or repair, including painting and 

30 decorating, of public buildings or public works; 

31 (2) any work required to be done in accordance with chapter 65 of 

32 this title; 

33 (3) a contract for the carriage of freight or personnel by vessel, air34 plane, bus, truck, express, railway line or oil or gas pipeline where pub35 lished tariff rates are in effect; 

36 (4) a contract for the furnishing of services by radio, telephone, tele37 graph, or cable companies, subject to the Communications Act of 1934 

38 (47 U.S.C. 151 et seq.); 

39 (5) a contract for public utility services, including electric light and 

40 power, water, steam, and gas; 


hsrobinson on PROD1PC76 with BILLS
172 

HR 1107 RH 

1 (6) an employment contract providing for direct services to a Federal 

2 agency by an individual; and 

3 (7) a contract with the United States Postal Service, the principal 

4 purpose of which is the operation of postal contract stations. 

5 § 6703. Required contract terms 

6 A contract, and bid specification for a contract, to which this chapter ap7 plies under section 6702 of this title shall contain the following terms: 

8 (1) MINIMUM WAGE.—The contract and bid specification shall con9 tain a provision specifying the minimum wage to be paid to each class 

10 of service employee engaged in the performance of the contract or any 

11 subcontract, as determined by the Secretary or the Secretary’s author12 ized representative, in accordance with prevailing rates in the locality, 

13 or, where a collective-bargaining agreement covers the service employ14 ees, in accordance with the rates provided for in the agreement, includ15 ing prospective wage increases provided for in the agreement as a re16 sult of arm’s length negotiations. In any case the minimum wage may 

17 not be less than the minimum wage specified in section 6704 of this 

18 title. 

19 (2) FRINGE BENEFITS.—The contract and bid specification shall 

20 contain a provision specifying the fringe benefits to be provided to each 

21 class of service employee engaged in the performance of the contract 

22 or any subcontract, as determined by the Secretary or the Secretary’s 

23 authorized representative to be prevailing in the locality, or, where a 

24 collective-bargaining agreement covers the service employees, to be pro25 vided for under the agreement, including prospective fringe benefit in26 creases provided for in the agreement as a result of arm’s-length nego27 tiations. The fringe benefits shall include medical or hospital care, pen28 sions on retirement or death, compensation for injuries or illness result29 ing from occupational activity, or insurance to provide any of the fore30 going, unemployment benefits, life insurance, disability and sickness in31 surance, accident insurance, vacation and holiday pay, costs of appren32 ticeship or other similar programs and other bona fide fringe benefits 

33 not otherwise required by Federal, State, or local law to be provided 

34 by the contractor or subcontractor. The obligation under this para35 graph may be discharged by furnishing any equivalent combinations of 

36 fringe benefits or by making equivalent or differential payments in cash 

37 under regulations established by the Secretary. 

38 (3) WORKING CONDITIONS.—The contract and bid specification shall 

39 contain a provision specifying that no part of the services covered by 

40 this chapter may be performed in buildings or surroundings or under 

41 working conditions, provided by or under the control or supervision of 


hsrobinson on PROD1PC76 with BILLS
173 

HR 1107 RH 

1 the contractor or any subcontractor, which are unsanitary or hazardous 

2 or dangerous to the health or safety of service employees engaged to 

3 provide the services. 

4 (4) NOTICE.—The contract and bid specification shall contain a pro5 vision specifying that on the date a service employee begins work on 

6 a contract to which this chapter applies, the contractor or subcon7 tractor will deliver to the employee a notice of the compensation re8 quired under paragraphs (1) and (2), on a form prepared by the Fed9 eral agency, or will post a notice of the required compensation in a 

10 prominent place at the worksite. 

11 (5) GENERAL SCHEDULE PAY RATES AND PREVAILING RATE SYS12 TEMS.—The contract and bid specification shall contain a statement of 

13 the rates that would be paid by the Federal agency to each class of 

14 service employee if section 5332 or 5341 of title 5 were applicable to 

15 them. The Secretary shall give due consideration to these rates in mak16 ing the wage and fringe benefit determinations specified in this section. 

17 § 6704. Limitation on minimum wage 

18 (a) IN GENERAL.—A contractor that makes a contract with the Federal 

19 Government, the principal purpose of which is to furnish services through 

20 the use of service employees, and any subcontractor, may not pay less than 

21 the minimum wage specified under section 6(a)(1) of the Fair Labor Stand22 ards Act of 1938 (29 U.S.C. 206(a)(1)) to an employee engaged in per23 forming work on the contract. 

24 (b) VIOLATIONS.—Sections 6705 to 6707(d) of this title are applicable to 

25 a violation of this section. 

26 § 6705. Violations 

27 (a) LIABILITY OF RESPONSIBLE PARTY.—A party responsible for a viola28 tion of a contract provision required under section 6703(1) or (2) of this 

29 title or a violation of section 6704 of this title is liable for an amount equal 

30 to the sum of any deduction, rebate, refund, or underpayment of compensa31 tion due any employee engaged in the performance of the contract. 

32 (b) RECOVERY OF AMOUNTS UNDERPAID TO EMPLOYEES.— 

33 (1) WITHHOLDING ACCRUED PAYMENTS DUE ON CONTRACTS.—The 

34 total amount determined under subsection (a) to be due any employee 

35 engaged in the performance of a contract may be withheld from ac36 crued payments due on the contract or on any other contract between 

37 the same contractor and the Federal Government. The amount with38 held shall be held in a deposit fund. On order of the Secretary, the 

39 compensation found by the Secretary or the head of a Federal agency 

40 to be due an underpaid employee pursuant to this chapter shall be paid 

41 from the deposit fund directly to the underpaid employee. 


hsrobinson on PROD1PC76 with BILLS
174 

HR 1107 RH 

1 (2) BRINGING ACTIONS AGAINST CONTRACTORS.—If the accrued pay2 ments withheld under the terms of the contract are insufficient to reim3 burse a service employee with respect to whom there has been a failure 

4 to pay the compensation required pursuant to this chapter, the Federal 

5 Government may bring action against the contractor, subcontractor, or 

6 any sureties in any court of competent jurisdiction to recover the re7 maining amount of underpayment. Any amount recovered shall be held 

8 in the deposit fund and shall be paid, on order of the Secretary, di9 rectly to the underpaid employee. Any amount not paid to an employee 

10 because of inability to do so within 3 years shall be covered into the 

11 Treasury as miscellaneous receipts. 

12 (c) CANCELLATION AND ALTERNATIVE COMPLETION.—In addition to 

13 other actions in accordance with this section, when a violation of any con14 tract stipulation is found, the Federal agency that made the contract may 

15 cancel the contract on written notice to the original contractor. The Federal 

16 Government may then make other contracts or arrangements for the com17 pletion of the original contract, charging any additional cost to the original 

18 contractor. 

19 (d) ENFORCEMENT OF SECTION.—In accordance with regulations pre20 scribed pursuant to section 6707(a)–(d) of this title, the Secretary or the 

21 head of a Federal agency may carry out this section. 

22 § 6706. Three-year prohibition on new contracts in case of 

23 violation 

24 (a) DISTRIBUTION OF LIST.—The Comptroller General shall distribute to 

25 each agency of the Federal Government a list containing the names of per26 sons or firms that a Federal agency or the Secretary has found to have vio27 lated this chapter. 

28 (b) THREE-YEAR PROHIBITION.—Unless the Secretary recommends oth29 erwise because of unusual circumstances, a Federal Government contract 

30 may not be awarded to a person or firm named on the list under subsection 

31 (a), or to an entity in which the person or firm has a substantial interest, 

32 until 3 years have elapsed from the date of publication of the list. If the 

33 Secretary does not recommend otherwise because of unusual circumstances, 

34 the Secretary shall, not later than 90 days after a hearing examiner has 

35 made a finding of a violation of this chapter, forward to the Comptroller 

36 General the name of the person or firm found to have violated this chapter. 

37 § 6707. Enforcement and administration of chapter 

38 (a) ENFORCEMENT OF CHAPTER.—Sections 6506 and 6507 of this title 

39 govern the Secretary’s authority to enforce this chapter, including the Sec40 retary’s authority to prescribe regulations, issue orders, hold hearings, make 


hsrobinson on PROD1PC76 with BILLS
175 

HR 1107 RH 

1 decisions based on findings of fact, and take other appropriate action under 

2 this chapter. 

3 (b) LIMITATIONS AND REGULATIONS FOR VARIATIONS, TOLERANCES, 

4 AND EXEMPTIONS.—The Secretary may provide reasonable limitations and 

5 may prescribe regulations allowing reasonable variation, tolerances, and ex6 emptions with respect to this chapter (other than subsection (f)), but only 

7 in special circumstances where the Secretary determines that the limitation, 

8 variation, tolerance, or exemption is necessary and proper in the public in9 terest or to avoid the serious impairment of Federal Government business, 

10 and is in accord with the remedial purpose of this chapter to protect pre11 vailing labor standards. 

12 (c) PRESERVATION OF WAGES AND BENEFITS DUE UNDER PREDE13 CESSOR CONTRACTS.— 

14 (1) IN GENERAL.—Under a contract which succeeds a contract sub15 ject to this chapter, and under which substantially the same services 

16 are furnished, a contractor or subcontractor may not pay a service em17 ployee less than the wages and fringe benefits the service employee 

18 would have received under the predecessor contract, including accrued 

19 wages and fringe benefits and any prospective increases in wages and 

20 fringe benefits provided for in a collective-bargaining agreement as a 

21 result of arm’s-length negotiations. 

22 (2) EXCEPTION.—This subsection does not apply if the Secretary 

23 finds after a hearing in accordance with regulations adopted by the 

24 Secretary that wages and fringe benefits under the predecessor con25 tract are substantially at variance with wages and fringe benefits pre26 vailing in the same locality for services of a similar character. 

27 (d) DURATION OF CONTRACTS.—Subject to limitations in annual appro28 priation acts but notwithstanding any other law, a contract to which this 

29 chapter applies may, if authorized by the Secretary, be for any term of 

30 years not exceeding 5, if the contract provides for periodic adjustment of 

31 wages and fringe benefits pursuant to future determinations, issued in the 

32 manner prescribed in section 6703 of this title at least once every 2 years 

33 during the term of the contract, covering each class of service employee. 

34 (e) EXCLUSION OF FRINGE BENEFIT PAYMENTS IN DETERMINING OVER35 TIME PAY.—In determining any overtime pay to which a service employee 

36 is entitled under Federal law, the regular or basic hourly rate of pay of the 

37 service employee does not include any fringe benefit payments computed 

38 under this chapter which are excluded from the definition of ‘‘regular rate’’ 

39 under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

40 207(e)). 


hsrobinson on PROD1PC76 with BILLS
176 

HR 1107 RH 

1 (f) TIMELINESS OF WAGE AND FRINGE BENEFIT DETERMINATIONS.—It 

2 is the intent of Congress that determinations of minimum wages and fringe 

3 benefits under section 6703(1) and (2) of this title should be made as soon 

4 as administratively feasible for all contracts subject to this chapter. In any 

5 event, the Secretary shall at least make the determinations for contracts 

6 under which more than 5 service employees are to be employed. 

7 Subtitle III—Contract Disputes 

Chapter Sec. 

71. Contract Disputes ............................................................................................. 7101 

8 CHAPTER 71—CONTRACT DISPUTES 

Sec. 

7101. Definitions. 

7102. Applicability of chapter. 

7103. Decision by contracting officer. 

7104. Contractor’s right of appeal from decision by contracting officer. 

7105. Agency boards. 

7106. Agency board procedures for accelerated and small claims. 

7107. Judicial review of agency board decisions. 

7108. Payment of claims. 

7109. Interest. 

9 § 7101. Definitions 

10 In this chapter: 

11 (1) ADMINISTRATOR.—The term ‘‘Administrator’’ means the Admin12 istrator for Federal Procurement Policy appointed pursuant to section 

13 1102 of this title. 

14 (2) AGENCY BOARD OR AGENCY BOARD OF CONTRACT APPEALS.— 

15 The term ‘‘agency board’’ or ‘‘agency board of contract appeals’’ 

16 means— 

17 (A) the Armed Services Board; 

18 (B) the Civilian Board; 

19 (C) the board of contract appeals of the Tennessee Valley Au20 thority; or 

21 (D) the Postal Service Board established under section 

22 7105(d)(1) of this title. 

23 (3) AGENCY HEAD.—The term ‘‘agency head’’ means the head and 

24 any assistant head of an executive agency. The term may include the 

25 chief official of a principal division of an executive agency if the head 

26 of the executive agency so designates that chief official. 

27 (4) ARMED SERVICES BOARD.—The term ‘‘Armed Services Board’’ 

28 means the Armed Services Board of Contract Appeals established 

29 under section 7105(a)(1) of this title. 

30 (5) CIVILIAN BOARD.—The term ‘‘Civilian Board’’ means the Civil31 ian Board of Contract Appeals established under section 7105(b)(1) of 

32 this title. 

33 (6) CONTRACTING OFFICER.—The term ‘‘contracting officer’’— 


hsrobinson on PROD1PC76 with BILLS
177 

HR 1107 RH 

1 (A) means an individual who, by appointment in accordance 

2 with applicable regulations, has the authority to make and admin3 ister contracts and to make determinations and findings with re4 spect to contracts; and 

5 (B) includes an authorized representative of the contracting of6 ficer, acting within the limits of the representative’s authority. 

7 (7) CONTRACTOR.—The term ‘‘contractor’’ means a party to a Fed8 eral Government contract other than the Federal Government. 

9 (8) EXECUTIVE AGENCY.—The term ‘‘executive agency’’ means— 

10 (A) an executive department as defined in section 101 of title 

11 5; 

12 (B) a military department as defined in section 102 of title 5; 

13 (C) an independent establishment as defined in section 104 of 

14 title 5, except that the term does not include the Government Ac15 countability Office; and 

16 (D) a wholly owned Government corporation as defined in sec17 tion 9101(3) of title 31. 

18 (9) MISREPRESENTATION OF FACT.—The term ‘‘misrepresentation 

19 of fact’’ means a false statement of substantive fact, or conduct that 

20 leads to a belief of a substantive fact material to proper understanding 

21 of the matter in hand, made with intent to deceive or mislead. 

22 § 7102. Applicability of chapter 

23 (a) EXECUTIVE AGENCY CONTRACTS.—Unless otherwise specifically pro24 vided in this chapter, this chapter applies to any express or implied contract 

25 (including those of the nonappropriated fund activities described in sections 

26 1346 and 1491 of title 28) made by an executive agency for— 

27 (1) the procurement of property, other than real property in being; 

28 (2) the procurement of services; 

29 (3) the procurement of construction, alteration, repair, or mainte30 nance of real property; or 

31 (4) the disposal of personal property. 

32 (b) TENNESSEE VALLEY AUTHORITY CONTRACTS.— 

33 (1) IN GENERAL.—With respect to contracts of the Tennessee Valley 

34 Authority, this chapter applies only to contracts containing a clause 

35 that requires contract disputes to be resolved through an agency ad36 ministrative process. 

37 (2) EXCLUSION.—Notwithstanding any other provision of this chap38 ter, this chapter does not apply to a contract of the Tennessee Valley 

39 Authority for the sale of fertilizer or electric power or related to the 

40 conduct or operation of the electric power system. 


hsrobinson on PROD1PC76 with BILLS
178 

HR 1107 RH 

1 (c) FOREIGN GOVERNMENT OR INTERNATIONAL ORGANIZATION CON2 TRACTS.—If an agency head determines that applying this chapter would 

3 not be in the public interest, this chapter does not apply to a contract with 

4 a foreign government, an agency of a foreign government, an international 

5 organization, or a subsidiary body of an international organization. 

6 (d) MARITIME CONTRACTS.—Appeals under section 7107(a) of this title 

7 and actions brought under sections 7104(b) and 7107(b) to (f) of this title, 

8 arising out of maritime contracts, are governed by chapter 309 or 311 of 

9 title 46, as applicable, to the extent that those chapters are not inconsistent 

10 with this chapter. 

11 § 7103. Decision by contracting officer 

12 (a) CLAIMS GENERALLY.— 

13 (1) SUBMISSION OF CONTRACTOR’S CLAIMS TO CONTRACTING OFFI14 CER.—Each claim by a contractor against the Federal Government re15 lating to a contract shall be submitted to the contracting officer for a 

16 decision. 

17 (2) CONTRACTOR’S CLAIMS IN WRITING.—Each claim by a contractor 

18 against the Federal Government relating to a contract shall be in writ19 ing. 

20 (3) CONTRACTING OFFICER TO DECIDE FEDERAL GOVERNMENT’S

21 CLAIMS.—Each claim by the Federal Government against a contractor 

22 relating to a contract shall be the subject of a written decision by the 

23 contracting officer. 

24 (4) TIME FOR SUBMITTING CLAIMS.— 

25 (A) IN GENERAL.—Each claim by a contractor against the Fed26 eral Government relating to a contract and each claim by the Fed27 eral Government against a contractor relating to a contract shall 

28 be submitted within 6 years after the accrual of the claim. 

29 (B) EXCEPTION.—Subparagraph (A) of this paragraph does not 

30 apply to a claim by the Federal Government against a contractor 

31 that is based on a claim by the contractor involving fraud. 

32 (5) APPLICABILITY.—The authority of this subsection and sub33 sections (c)(1), (d), and (e) does not extend to a claim or dispute for 

34 penalties or forfeitures prescribed by statute or regulation that another 

35 Federal agency is specifically authorized to administer, settle, or deter36 mine. 

37 (b) CERTIFICATION OF CLAIMS.— 

38 (1) REQUIREMENT GENERALLY.—For claims of more than $100,000 

39 made by a contractor, the contractor shall certify that— 

40 (A) the claim is made in good faith; 


hsrobinson on PROD1PC76 with BILLS
179 

HR 1107 RH 

1 (B) the supporting data are accurate and complete to the best 

2 of the contractor’s knowledge and belief; 

3 (C) the amount requested accurately reflects the contract ad4 justment for which the contractor believes the Federal Government 

5 is liable; and 

6 (D) the certifier is authorized to certify the claim on behalf of 

7 the contractor. 

8 (2) WHO MAY EXECUTE CERTIFICATION.—The certification required 

9 by paragraph (1) may be executed by an individual authorized to bind 

10 the contractor with respect to the claim. 

11 (3) FAILURE TO CERTIFY OR DEFECTIVE CERTIFICATION.—A con12 tracting officer is not obligated to render a final decision on a claim 

13 of more than $100,000 that is not certified in accordance with para14 graph (1) if, within 60 days after receipt of the claim, the contracting 

15 officer notifies the contractor in writing of the reasons why any at16 tempted certification was found to be defective. A defect in the certifi17 cation of a claim does not deprive a court or an agency board of juris18 diction over the claim. Prior to the entry of a final judgment by a court 

19 or a decision by an agency board, the court or agency board shall re20 quire a defective certification to be corrected. 

21 (c) FRAUDULENT CLAIMS.— 

22 (1) NO AUTHORITY TO SETTLE.—This section does not authorize an 

23 agency head to settle, compromise, pay, or otherwise adjust any claim 

24 involving fraud. 

25 (2) LIABILITY OF CONTRACTOR.—If a contractor is unable to sup26 port any part of the contractor’s claim and it is determined that the 

27 inability is attributable to a misrepresentation of fact or fraud by the 

28 contractor, then the contractor is liable to the Federal Government for 

29 an amount equal to the unsupported part of the claim plus all of the 

30 Federal Government’s costs attributable to reviewing the unsupported 

31 part of the claim. Liability under this paragraph shall be determined 

32 within 6 years of the commission of the misrepresentation of fact or 

33 fraud. 

34 (d) ISSUANCE OF DECISION.—The contracting officer shall issue a deci35 sion in writing and shall mail or otherwise furnish a copy of the decision 

36 to the contractor. 

37 (e) CONTENTS OF DECISION.—The contracting officer’s decision shall 

38 state the reasons for the decision reached and shall inform the contractor 

39 of the contractor’s rights as provided in this chapter. Specific findings of 

40 fact are not required. If made, specific findings of fact are not binding in 

41 any subsequent proceeding. 


hsrobinson on PROD1PC76 with BILLS
180 

HR 1107 RH 

1 (f) TIME FOR ISSUANCE OF DECISION.— 

2 (1) CLAIM OF $100,000 OR LESS.—A contracting officer shall issue a 

3 decision on any submitted claim of $100,000 or less within 60 days 

4 from the contracting officer’s receipt of a written request from the con5 tractor that a decision be rendered within that period. 

6 (2) CLAIM OF MORE THAN $100,000.—A contracting officer shall, 

7 within 60 days of receipt of a submitted certified claim over 

8 $100,000— 

9 (A) issue a decision; or 

10 (B) notify the contractor of the time within which a decision will 

11 be issued. 

12 (3) GENERAL REQUIREMENT OF REASONABLENESS.—The decision of 

13 a contracting officer on submitted claims shall be issued within a rea14 sonable time, in accordance with regulations prescribed by the agency, 

15 taking into account such factors as the size and complexity of the claim 

16 and the adequacy of information in support of the claim provided by 

17 the contractor. 

18 (4) REQUESTING TRIBUNAL TO DIRECT ISSUANCE WITHIN SPECIFIED

19 TIME PERIOD.—A contractor may request the tribunal concerned to di20 rect a contracting officer to issue a decision in a specified period of 

21 time, as determined by the tribunal concerned, in the event of undue 

22 delay on the part of the contracting officer. 

23 (5) FAILURE TO ISSUE DECISION WITHIN REQUIRED TIME PERIOD.— 

24 Failure by a contracting officer to issue a decision on a claim within 

25 the required time period is deemed to be a decision by the contracting 

26 officer denying the claim and authorizes an appeal or action on the 

27 claim as otherwise provided in this chapter. However, the tribunal con28 cerned may, at its option, stay the proceedings of the appeal or action 

29 to obtain a decision by the contracting officer. 

30 (g) FINALITY OF DECISION UNLESS APPEALED.—The contracting offi31 cer’s decision on a claim is final and conclusive and is not subject to review 

32 by any forum, tribunal, or Federal Government agency, unless an appeal or 

33 action is timely commenced as authorized by this chapter. This chapter does 

34 not prohibit an executive agency from including a clause in a Federal Gov35 ernment contract requiring that, pending final decision of an appeal, action, 

36 or final settlement, a contractor shall proceed diligently with performance 

37 of the contract in accordance with the contracting officer’s decision. 

38 (h) ALTERNATIVE MEANS OF DISPUTE RESOLUTION.— 

39 (1) IN GENERAL.—Notwithstanding any other provision of this chap40 ter, a contractor and a contracting officer may use any alternative 

41 means of dispute resolution under subchapter IV of chapter 5 of title 


hsrobinson on PROD1PC76 with BILLS
181 

HR 1107 RH 

1 5, or other mutually agreeable procedures, for resolving claims. All pro2 visions of subchapter IV of chapter 5 of title 5 apply to alternative 

3 means of dispute resolution under this subsection. 

4 (2) CERTIFICATION OF CLAIM.—The contractor shall certify the 

5 claim when required to do so under subsection (b)(1) or other law. 

6 (3) REJECTING REQUEST FOR ALTERNATIVE DISPUTE RESOLU7 TION.— 

8 (A) CONTRACTING OFFICER.—A contracting officer who rejects 

9 a contractor’s request for alternative dispute resolution pro10 ceedings shall provide the contractor with a written explanation, 

11 citing one or more of the conditions in section 572(b) of title 5 

12 or other specific reasons that alternative dispute resolution proce13 dures are inappropriate. 

14 (B) CONTRACTOR.—A contractor that rejects an agency’s re15 quest for alternative dispute resolution proceedings shall inform 

16 the agency in writing of the contractor’s specific reasons for re17 jecting the request. 

18 § 7104. Contractor’s right of appeal from decision by con19 tracting officer 

20 (a) APPEAL TO AGENCY BOARD.—A contractor, within 90 days from the 

21 date of receipt of a contracting officer’s decision under section 7103 of this 

22 title, may appeal the decision to an agency board as provided in section 

23 7105 of this title. 

24 (b) BRINGING AN ACTION DE NOVO IN FEDERAL COURT.— 

25 (1) IN GENERAL.—Except as provided in paragraph (2), and in lieu 

26 of appealing the decision of a contracting officer under section 7103 

27 of this title to an agency board, a contractor may bring an action di28 rectly on the claim in the United States Court of Federal Claims, not29 withstanding any contract provision, regulation, or rule of law to the 

30 contrary. 

31 (2) TENNESSEE VALLEY AUTHORITY.—In the case of an action 

32 against the Tennessee Valley Authority, the contractor may only bring 

33 an action directly on the claim in a district court of the United States 

34 pursuant to section 1337 of title 28, notwithstanding any contract pro35 vision, regulation, or rule of law to the contrary. 

36 (3) TIME FOR FILING.—A contractor shall file any action under 

37 paragraph (1) or (2) within 12 months from the date of receipt of a 

38 contracting officer’s decision under section 7103 of this title. 

39 (4) DE NOVO.—An action under paragraph (1) or (2) shall proceed 

40 de novo in accordance with the rules of the appropriate court. 


hsrobinson on PROD1PC76 with BILLS
182 

HR 1107 RH 

1 § 7105. Agency boards 

2 (a) ARMED SERVICES BOARD.— 

3 (1) ESTABLISHMENT.—An Armed Services Board of Contract Ap4 peals may be established within the Department of Defense when the 

5 Secretary of Defense, after consultation with the Administrator, deter6 mines from a workload study that the volume of contract claims justi7 fies the establishment of a full-time agency board of at least 3 members 

8 who shall have no other inconsistent duties. Workload studies will be 

9 updated at least once every 3 years and submitted to the Adminis10 trator. 

11 (2) APPOINTMENT OF MEMBERS AND COMPENSATION.—Members of 

12 the Armed Services Board shall be selected and appointed in the same 

13 manner as administrative law judges appointed pursuant to section 

14 3105 of title 5, with an additional requirement that members must 

15 have had at least 5 years of experience in public contract law. The Sec16 retary of Defense shall designate the chairman and vice chairman of 

17 the Armed Services Board from among the appointed members. Com18 pensation for the chairman, vice chairman, and other members shall be 

19 determined under section 5372a of title 5. 

20 (b) CIVILIAN BOARD.— 

21 (1) ESTABLISHMENT.—There is established in the General Services 

22 Administration the Civilian Board of Contract Appeals. 

23 (2) MEMBERSHIP.— 

24 (A) ELIGIBILITY.—The Civilian Board consists of members ap25 pointed by the Administrator of General Services (in consultation 

26 with the Administrator for Federal Procurement Policy) from a 

27 register of applicants maintained by the Administrator of General 

28 Services, in accordance with rules issued by the Administrator of 

29 General Services (in consultation with the Administrator for Fed30 eral Procurement Policy) for establishing and maintaining a reg31 ister of eligible applicants and selecting Civilian Board members. 

32 The Administrator of General Services shall appoint a member 

33 without regard to political affiliation and solely on the basis of the 

34 professional qualifications required to perform the duties and re35 sponsibilities of a Civilian Board member. 

36 (B) APPOINTMENT OF MEMBERS AND COMPENSATION.—Mem37 bers of the Civilian Board shall be selected and appointed to serve 

38 in the same manner as administrative law judges appointed pursu39 ant to section 3105 of title 5, with an additional requirement that 

40 members must have had at least 5 years experience in public conVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00182 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
183 

HR 1107 RH 

1 tract law. Compensation for the members shall be determined 

2 under section 5372a of title 5. 

3 (3) REMOVAL.—Members of the Civilian Board are subject to re4 moval in the same manner as administrative law judges, as provided 

5 in section 7521 of title 5. 

6 (4) FUNCTIONS.— 

7 (A) IN GENERAL.—The Civilian Board has jurisdiction as pro8 vided by subsection (e)(1)(B). 

9 (B) ADDITIONAL JURISDICTION.—With the concurrence of the 

10 Federal agencies affected, the Civilian Board may assume— 

11 (i) jurisdiction over any additional category of laws or dis12 putes over which an agency board of contract appeals estab13 lished pursuant to section 8 of the Contract Disputes Act ex14 ercised jurisdiction before January 6, 2007; and 

15 (ii) any other function the agency board performed before 

16 January 6, 2007, on behalf of those agencies. 

17 (c) TENNESSEE VALLEY AUTHORITY BOARD.— 

18 (1) ESTABLISHMENT.—The Board of Directors of the Tennessee 

19 Valley Authority may establish a board of contract appeals of the Ten20 nessee Valley Authority of an indeterminate number of members. 

21 (2) APPOINTMENT OF MEMBERS AND COMPENSATION.—The Board 

22 of Directors of the Tennessee Valley Authority shall establish criteria 

23 for the appointment of members to the agency board established under 

24 paragraph (1), and shall designate a chairman of the agency board. 

25 The chairman and other members of the agency board shall receive 

26 compensation, at the daily equivalent of the rates determined under 

27 section 5372a of title 5, for each day they are engaged in the actual 

28 performance of their duties as members of the agency board. 

29 (d) POSTAL SERVICE BOARD.— 

30 (1) ESTABLISHMENT.—There is established an agency board of con31 tract appeals known as the Postal Service Board of Contract Appeals. 

32 (2) APPOINTMENT AND SERVICE OF MEMBERS.—The Postal Service 

33 Board of Contract Appeals consists of judges appointed by the Post34 master General. The judges shall meet the qualifications of and serve 

35 in the same manner as members of the Civilian Board. 

36 (3) APPLICATION.—This chapter applies to contract disputes before 

37 the Postal Service Board of Contract Appeals in the same manner as 

38 it applies to contract disputes before the Civilian Board. 

39 (e) JURISDICTION.— 

40 (1) IN GENERAL.— 


hsrobinson on PROD1PC76 with BILLS
184 

HR 1107 RH 

1 (A) ARMED SERVICES BOARD.—The Armed Services Board has 

2 jurisdiction to decide any appeal from a decision of a contracting 

3 officer of the Department of Defense, the Department of the 

4 Army, the Department of the Navy, the Department of the Air 

5 Force, or the National Aeronautics and Space Administration rel6 ative to a contract made by that department or agency. 

7 (B) CIVILIAN BOARD.—The Civilian Board has jurisdiction to 

8 decide any appeal from a decision of a contracting officer of any 

9 executive agency (other than the Department of Defense, the De10 partment of the Army, the Department of the Navy, the Depart11 ment of the Air Force, the National Aeronautics and Space Ad12 ministration, the United States Postal Service, the Postal Regu13 latory Commission, or the Tennessee Valley Authority) relative to 

14 a contract made by that agency. 

15 (C) POSTAL SERVICE BOARD.—The Postal Service Board of 

16 Contract Appeals has jurisdiction to decide any appeal from a de17 cision of a contracting officer of the United States Postal Service 

18 or the Postal Regulatory Commission relative to a contract made 

19 by either agency. 

20 (D) OTHER AGENCY BOARDS.—Each other agency board has ju21 risdiction to decide any appeal from a decision of a contracting of22 ficer relative to a contract made by its agency. 

23 (2) RELIEF.—In exercising this jurisdiction, an agency board may 

24 grant any relief that would be available to a litigant asserting a con25 tract claim in the United States Court of Federal Claims. 

26 (f) SUBPOENA, DISCOVERY, AND DEPOSITION.—A member of an agency 

27 board of contract appeals may administer oaths to witnesses, authorize 

28 depositions and discovery proceedings, and require by subpoena the attend29 ance of witnesses, and production of books and papers, for the taking of 

30 testimony or evidence by deposition or in the hearing of an appeal by the 

31 agency board. In case of contumacy or refusal to obey a subpoena by a per32 son who resides, is found, or transacts business within the jurisdiction of 

33 a United States district court, the court, upon application of the agency 

34 board through the Attorney General, or upon application by the board of 

35 contract appeals of the Tennessee Valley Authority, shall have jurisdiction 

36 to issue the person an order requiring the person to appear before the agen37 cy board or a member of the agency board, to produce evidence or to give 

38 testimony, or both. Any failure of the person to obey the order of the court 

39 may be punished by the court as contempt of court. 

40 (g) DECISIONS.—An agency board shall— 


hsrobinson on PROD1PC76 with BILLS
185 

HR 1107 RH 

1 (1) to the fullest extent practicable provide informal, expeditious, and 

2 inexpensive resolution of disputes; 

3 (2) issue a decision in writing or take other appropriate action on 

4 each appeal submitted; and 

5 (3) mail or otherwise furnish a copy of the decision to the contractor 

6 and the contracting officer. 

7 § 7106. Agency board procedures for accelerated and small 

8 claims 

9 (a) ACCELERATED PROCEDURE WHERE $100,000 OR LESS IN DIS10 PUTE.—The rules of each agency board shall include a procedure for the 

11 accelerated disposition of any appeal from a decision of a contracting officer 

12 where the amount in dispute is $100,000 or less. The accelerated procedure 

13 is applicable at the sole election of the contractor. An appeal under the ac14 celerated procedure shall be resolved, whenever possible, within 180 days 

15 from the date the contractor elects to use the procedure. 

16 (b) SMALL CLAIMS PROCEDURE.— 

17 (1) IN GENERAL.—The rules of each agency board shall include a 

18 procedure for the expedited disposition of any appeal from a decision 

19 of a contracting officer where the amount in dispute is $50,000 or less, 

20 or in the case of a small business concern (as defined in the Small 

21 Business Act (15 U.S.C. 631 et seq.) and regulations under that Act), 

22 $150,000 or less. The small claims procedure is applicable at the sole 

23 election of the contractor. 

24 (2) SIMPLIFIED RULES OF PROCEDURE.—The small claims proce25 dure shall provide for simplified rules of procedure to facilitate the de26 cision of any appeal. An appeal under the small claims procedure may 

27 be decided by a single member of the agency board with such concur28 rences as may be provided by rule or regulation. 

29 (3) TIME OF DECISION.—An appeal under the small claims proce30 dure shall be resolved, whenever possible, within 120 days from the 

31 date the contractor elects to use the procedure. 

32 (4) FINALITY OF DECISION.—A decision against the Federal Govern33 ment or against the contractor reached under the small claims proce34 dure is final and conclusive and may not be set aside except in cases 

35 of fraud. 

36 (5) NO PRECEDENT.—Administrative determinations and final deci37 sions under this subsection have no value as precedent for future cases 

38 under this chapter. 

39 (6) REVIEW OF REQUISITE AMOUNT IN CONTROVERSY.—The Admin40 istrator, from time to time, may review the dollar amount specified in 


hsrobinson on PROD1PC76 with BILLS
186 

HR 1107 RH 

1 paragraph (1) and adjust the amount in accordance with economic in2 dexes selected by the Administrator. 

3 § 7107. Judicial review of agency board decisions 

4 (a) REVIEW.— 

5 (1) IN GENERAL.—The decision of an agency board is final, except 

6 that— 

7 (A) a contractor may appeal the decision to the United States 

8 Court of Appeals for the Federal Circuit within 120 days from the 

9 date the contractor receives a copy of the decision; or 

10 (B) if an agency head determines that an appeal should be 

11 taken, the agency head, with the prior approval of the Attorney 

12 General, may transmit the decision to the United States Court of 

13 Appeals for the Federal Circuit for judicial review under section 

14 1295 of title 28, within 120 days from the date the agency re15 ceives a copy of the decision. 

16 (2) TENNESSEE VALLEY AUTHORITY.—Notwithstanding paragraph 

17 (1), a decision of the board of contract appeals of the Tennessee Valley 

18 Authority is final, except that— 

19 (A) a contractor may appeal the decision to a United States dis20 trict court pursuant to section 1337 of title 28, within 120 days 

21 from the date the contractor receives a copy of the decision; or 

22 (B) the Tennessee Valley Authority may appeal the decision to 

23 a United States district court pursuant to section 1337 of title 28, 

24 within 120 days from the date of the decision. 

25 (3) REVIEW OF ARBITRATION.—An award by an arbitrator under 

26 this chapter shall be reviewed pursuant to sections 9 to 13 of title 9, 

27 except that the court may set aside or limit any award that is found 

28 to violate limitations imposed by Federal statute. 

29 (b) FINALITY OF AGENCY BOARD DECISIONS ON QUESTIONS OF LAW

30 AND FACT.—Notwithstanding any contract provision, regulation, or rule of 

31 law to the contrary, in an appeal by a contractor or the Federal Government 

32 from the decision of an agency board pursuant to subsection (a)— 

33 (1) the decision of the agency board on a question of law is not final 

34 or conclusive; but 

35 (2) the decision of the agency board on a question of fact is final 

36 and conclusive and may not be set aside unless the decision is— 

37 (A) fraudulent, arbitrary, or capricious; 

38 (B) so grossly erroneous as to necessarily imply bad faith; or 

39 (C) not supported by substantial evidence. 

40 (c) REMAND.—In an appeal by a contractor or the Federal Government 

41 from the decision of an agency board pursuant to subsection (a), the court 


hsrobinson on PROD1PC76 with BILLS
187 

HR 1107 RH 

1 may render an opinion and judgment and remand the case for further ac2 tion by the agency board or by the executive agency as appropriate, with 

3 direction the court considers just and proper. 

4 (d) CONSOLIDATION.—If 2 or more actions arising from one contract are 

5 filed in the United States Court of Federal Claims and one or more agency 

6 boards, for the convenience of parties or witnesses or in the interest of jus7 tice, the United States Court of Federal Claims may order the consolidation 

8 of the actions in that court or transfer any actions to or among the agency 

9 boards involved. 

10 (e) JUDGMENTS AS TO FEWER THAN ALL CLAIMS OR PARTIES.—In an 

11 action filed pursuant to this chapter involving 2 or more claims, counter12 claims, cross-claims, or third-party claims, and where a portion of one of 

13 the claims can be divided for purposes of decision or judgment, and in any 

14 action where multiple parties are involved, the court, whenever appropriate, 

15 may enter a judgment as to one or more but fewer than all of the claims 

16 or portions of claims or parties. 

17 (f) ADVISORY OPINIONS.— 

18 (1) IN GENERAL.—Whenever an action involving an issue described 

19 in paragraph (2) is pending in a district court of the United States, 

20 the district court may request an agency board to provide the court 

21 with an advisory opinion on the matters of contract interpretation 

22 under consideration. 

23 (2) APPLICABLE ISSUE.—An issue referred to in paragraph (1) is 

24 any issue that could be the proper subject of a final decision of a con25 tracting officer appealable under this chapter. 

26 (3) REFERRAL TO AGENCY BOARD WITH JURISDICTION.—A district 

27 court shall direct a request under paragraph (1) to the agency board 

28 having jurisdiction under this chapter to adjudicate appeals of contract 

29 claims under the contract being interpreted by the court. 

30 (4) TIMELY RESPONSE.—After receiving a request for an advisory 

31 opinion under paragraph (1), an agency board shall provide the advi32 sory opinion in a timely manner to the district court making the re33 quest. 

34 § 7108. Payment of claims 

35 (a) JUDGMENTS.—Any judgment against the Federal Government on a 

36 claim under this chapter shall be paid promptly in accordance with the pro37 cedures provided by section 1304 of title 31. 

38 (b) MONETARY AWARDS.—Any monetary award to a contractor by an 

39 agency board shall be paid promptly in accordance with the procedures con40 tained in subsection (a). 


hsrobinson on PROD1PC76 with BILLS
188 

HR 1107 RH 

1 (c) REIMBURSEMENT.—Payments made pursuant to subsections (a) and 

2 (b) shall be reimbursed to the fund provided by section 1304 of title 31 by 

3 the agency whose appropriations were used for the contract out of available 

4 amounts or by obtaining additional appropriations for purposes of reim5 bursement. 

6 (d) TENNESSEE VALLEY AUTHORITY.— 

7 (1) JUDGMENTS.—Notwithstanding subsections (a) to (c), any judg8 ment against the Tennessee Valley Authority on a claim under this 

9 chapter shall be paid promptly in accordance with section 9(b) of the 

10 Tennessee Valley Authority Act of 1933 (16 U.S.C. 831h(b)). 

11 (2) MONETARY AWARDS.—Notwithstanding subsections (a) to (c), 

12 any monetary award to a contractor by the board of contract appeals 

13 of the Tennessee Valley Authority shall be paid in accordance with sec14 tion 9(b) of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 

15 831h(b)). 

16 § 7109. Interest 

17 (a) PERIOD.— 

18 (1) IN GENERAL.—Interest on an amount found due a contractor on 

19 a claim shall be paid to the contractor for the period beginning with 

20 the date the contracting officer receives the contractor’s claim, pursu21 ant to section 7103(a) of this title, until the date of payment of the 

22 claim. 

23 (2) DEFECTIVE CERTIFICATION.—On a claim for which the certifi24 cation under section 7103(b)(1) of this title is found to be defective, 

25 any interest due under this section shall be paid for the period begin26 ning with the date the contracting officer initially receives the contrac27 tor’s claim until the date of payment of the claim. 

28 (b) RATE.—Interest shall accrue and be paid at a rate which the Sec29 retary of the Treasury shall specify as applicable for each successive 6- 

30 month period. The rate shall be determined by the Secretary of the Treas31 ury taking into consideration current private commercial rates of interest 

32 for new loans maturing in approximately 5 years. 

33 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 

34 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. 


hsrobinson on PROD1PC76 with BILLS
189 

HR 1107 RH 

8105. Waiver. 

8106. Regulations. 

1 § 8101. Definitions and construction 

2 (a) DEFINITIONS.—In this chapter: 

3 (1) CONTRACTOR.—The term ‘‘contractor’’ means the department, 

4 division, or other unit of a person responsible for the performance 

5 under the contract. 

6 (2) CONTROLLED SUBSTANCE.—The term ‘‘controlled substance’’ 

7 means a controlled substance in schedules I through V of section 202 

8 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 

9 (21 U.S.C. 812). 

10 (3) CONVICTION.—The term ‘‘conviction’’ means a finding of guilt 

11 (including a plea of nolo contendere), an imposition of sentence, or 

12 both, by a judicial body charged with the responsibility to determine 

13 violations of Federal or State criminal drug statutes. 

14 (4) CRIMINAL DRUG STATUTE.—The term ‘‘criminal drug statute’’ 

15 means a criminal statute involving manufacture, distribution, dispensa16 tion, use, or possession of a controlled substance. 

17 (5) DRUG-FREE WORKPLACE.—The term ‘‘drug-free workplace’’ 

18 means a site of an entity— 

19 (A) for the performance of work done in connection with a spe20 cific contract or grant described in section 8102 or 8103 of this 

21 title; and 

22 (B) at which employees of the entity are prohibited from engag23 ing in the unlawful manufacture, distribution, dispensation, pos24 session, or use of a controlled substance in accordance with the 

25 requirements of the Anti-Drug Abuse Act of 1988 (Public Law 

26 100–690, 102 Stat. 4181). 

27 (6) EMPLOYEE.—The term ‘‘employee’’ means the employee of a 

28 contractor or grantee directly engaged in the performance of work pur29 suant to the contract or grant described in section 8102 or 8103 of 

30 this title. 

31 (7) FEDERAL AGENCY.—The term ‘‘Federal agency’’ means an agen32 cy as defined in section 552(f) of title 5. 

33 (8) GRANTEE.—The term ‘‘grantee’’ means the department, division, 

34 or other unit of a person responsible for the performance under the 

35 grant. 

36 (b) CONSTRUCTION.—This chapter does not require law enforcement 

37 agencies to comply with this chapter if the head of the agency determines 

38 it would be inappropriate in connection with the agency’s undercover oper39 ations. 


hsrobinson on PROD1PC76 with BILLS
190 

HR 1107 RH 

1 § 8102. Drug-free workplace requirements for Federal con2 tractors 

3 (a) IN GENERAL.— 

4 (1) PERSONS OTHER THAN INDIVIDUALS.—A person other than an 

5 individual shall not be considered a responsible source (as defined in 

6 section 113 of this title) for the purposes of being awarded a contract 

7 for the procurement of any property or services of a value greater than 

8 the simplified acquisition threshold (as defined in section 134 of this 

9 title) by a Federal agency, other than a contract for the procurement 

10 of commercial items (as defined in section 103 of this title), unless the 

11 person agrees to provide a drug-free workplace by— 

12 (A) publishing a statement notifying employees that the unlaw13 ful manufacture, distribution, dispensation, possession, or use of 

14 a controlled substance is prohibited in the person’s workplace and 

15 specifying the actions that will be taken against employees for vio16 lations of the prohibition; 

17 (B) establishing a drug-free awareness program to inform em18 ployees about— 

19 (i) the dangers of drug abuse in the workplace; 

20 (ii) the person’s policy of maintaining a drug-free work21 place; 

22 (iii) available drug counseling, rehabilitation, and employee 

23 assistance programs; and 

24 (iv) the penalties that may be imposed on employees for 

25 drug abuse violations; 

26 (C) making it a requirement that each employee to be engaged 

27 in the performance of the contract be given a copy of the state28 ment required by subparagraph (A); 

29 (D) notifying the employee in the statement required by sub30 paragraph (A) that as a condition of employment on the contract 

31 the employee will— 

32 (i) abide by the terms of the statement; and 

33 (ii) notify the employer of any criminal drug statute convic34 tion for a violation occurring in the workplace no later than 

35 5 days after the conviction; 

36 (E) notifying the contracting agency within 10 days after receiv37 ing notice under subparagraph (D)(ii) from an employee or other38 wise receiving actual notice of a conviction; 

39 (F) imposing a sanction on, or requiring the satisfactory partici40 pation in a drug abuse assistance or rehabilitation program by, 


hsrobinson on PROD1PC76 with BILLS
191 

HR 1107 RH 

1 any employee who is convicted, as required by section 8104 of this 

2 title; and 

3 (G) making a good faith effort to continue to maintain a drug4 free workplace through implementation of subparagraphs (A) to 

5 (F). 

6 (2) INDIVIDUALS.—A Federal agency shall not make a contract with 

7 an individual unless the individual agrees not to engage in the unlawful 

8 manufacture, distribution, dispensation, possession, or use of a con9 trolled substance in the performance of the contract. 

10 (b) SUSPENSION, TERMINATION, OR DEBARMENT OF CONTRACTOR.— 

11 (1) GROUNDS FOR SUSPENSION, TERMINATION, OR DEBARMENT.— 

12 Payment under a contract awarded by a Federal agency may be sus13 pended and the contract may be terminated, and the contractor or indi14 vidual who made the contract with the agency may be suspended or 

15 debarred in accordance with the requirements of this section, if the 

16 head of the agency determines that— 

17 (A) the contractor is violating, or has violated, the requirements 

18 of subparagraph (A), (B), (C), (D), (E), or (F) of subsection 

19 (a)(1); or 

20 (B) the number of employees of the contractor who have been 

21 convicted of violations of criminal drug statutes for violations oc22 curring in the workplace indicates that the contractor has failed 

23 to make a good faith effort to provide a drug-free workplace as 

24 required by subsection (a). 

25 (2) CONDUCT OF SUSPENSION, TERMINATION, AND DEBARMENT

26 PROCEEDINGS.—A contracting officer who determines in writing that 

27 cause for suspension of payments, termination, or suspension or debar28 ment exists shall initiate an appropriate action, to be conducted by the 

29 agency concerned in accordance with the Federal Acquisition Regula30 tion and applicable agency procedures. The Federal Acquisition Regula31 tion shall be revised to include rules for conducting suspension and de32 barment proceedings under this subsection, including rules providing 

33 notice, opportunity to respond in writing or in person, and other proce34 dures as may be necessary to provide a full and fair proceeding to a 

35 contractor or individual. 

36 (3) EFFECT OF DEBARMENT.—A contractor or individual debarred 

37 by a final decision under this subsection is ineligible for award of a 

38 contract by a Federal agency, and for participation in a future procure39 ment by a Federal agency, for a period specified in the decision, not 

40 to exceed 5 years. 


hsrobinson on PROD1PC76 with BILLS
192 

HR 1107 RH 

1 § 8103. Drug-free workplace requirements for Federal grant 

2 recipients 

3 (a) IN GENERAL.— 

4 (1) PERSONS OTHER THAN INDIVIDUALS.—A person other than an 

5 individual shall not receive a grant from a Federal agency unless the 

6 person agrees to provide a drug-free workplace by— 

7 (A) publishing a statement notifying employees that the unlaw8 ful manufacture, distribution, dispensation, possession, or use of 

9 a controlled substance is prohibited in the grantee’s workplace and 

10 specifying the actions that will be taken against employees for vio11 lations of the prohibition; 

12 (B) establishing a drug-free awareness program to inform em13 ployees about— 

14 (i) the dangers of drug abuse in the workplace; 

15 (ii) the grantee’s policy of maintaining a drug-free work16 place; 

17 (iii) available drug counseling, rehabilitation, and employee 

18 assistance programs; and 

19 (iv) the penalties that may be imposed on employees for 

20 drug abuse violations; 

21 (C) making it a requirement that each employee to be engaged 

22 in the performance of the grant be given a copy of the statement 

23 required by subparagraph (A); 

24 (D) notifying the employee in the statement required by sub25 paragraph (A) that as a condition of employment in the grant the 

26 employee will— 

27 (i) abide by the terms of the statement; and 

28 (ii) notify the employer of any criminal drug statute convic29 tion for a violation occurring in the workplace no later than 

30 5 days after the conviction; 

31 (E) notifying the granting agency within 10 days after receiving 

32 notice under subparagraph (D)(ii) from an employee or otherwise 

33 receiving actual notice of a conviction; 

34 (F) imposing a sanction on, or requiring the satisfactory partici35 pation in a drug abuse assistance or rehabilitation program by, 

36 any employee who is convicted, as required by section 8104 of this 

37 title; and 

38 (G) making a good faith effort to continue to maintain a drug39 free workplace through implementation of subparagraphs (A) to 

40 (F). 


hsrobinson on PROD1PC76 with BILLS
193 

HR 1107 RH 

1 (2) INDIVIDUALS.—A Federal agency shall not make a grant to an 

2 individual unless the individual agrees not to engage in the unlawful 

3 manufacture, distribution, dispensation, possession, or use of a con4 trolled substance in conducting an activity with the grant. 

5 (b) SUSPENSION, TERMINATION, OR DEBARMENT OF GRANTEE.— 

6 (1) GROUNDS FOR SUSPENSION, TERMINATION, OR DEBARMENT.— 

7 Payment under a grant awarded by a Federal agency may be sus8 pended and the grant may be terminated, and the grantee may be sus9 pended or debarred, in accordance with the requirements of this sec10 tion, if the head of the agency or the official designee of the head of 

11 the agency determines in writing that— 

12 (A) the grantee is violating, or has violated, the requirements 

13 of subparagraph (A), (B), (C), (D), (E), (F), or (G) of subsection 

14 (a)(1); or 

15 (B) the number of employees of the grantee who have been con16 victed of violations of criminal drug statutes for violations occur17 ring in the workplace indicates that the grantee has failed to make 

18 a good faith effort to provide a drug-free workplace as required 

19 by subsection (a)(1). 

20 (2) CONDUCT OF SUSPENSION, TERMINATION, AND DEBARMENT

21 PROCEEDINGS.—A suspension of payments, termination, or suspension 

22 or debarment proceeding subject to this subsection shall be conducted 

23 in accordance with applicable law, including Executive Order 12549 or 

24 any superseding executive order and any regulations prescribed to im25 plement the law or executive order. 

26 (3) EFFECT OF DEBARMENT.—A grantee debarred by a final deci27 sion under this subsection is ineligible for award of a grant by a Fed28 eral agency, and for participation in a future grant by a Federal agen29 cy, for a period specified in the decision, not to exceed 5 years. 

30 § 8104. Employee sanctions and remedies 

31 Within 30 days after receiving notice from an employee of a conviction 

32 pursuant to section 8102(a)(1)(D)(ii) or 8103(a)(1)(D)(ii) of this title, a 

33 contractor or grantee shall— 

34 (1) take appropriate personnel action against the employee, up to 

35 and including termination; or 

36 (2) require the employee to satisfactorily participate in a drug abuse 

37 assistance or rehabilitation program approved for those purposes by a 

38 Federal, State, or local health, law enforcement, or other appropriate 

39 agency. 


hsrobinson on PROD1PC76 with BILLS
194 

HR 1107 RH 

1 § 8105. Waiver 

2 (a) IN GENERAL.—The head of an agency may waive a suspension of 

3 payments, termination of the contract or grant, or suspension or debarment 

4 of a contractor or grantee under this chapter with respect to a particular 

5 contract or grant if— 

6 (1) in the case of a contract, the head of the agency determines 

7 under section 8102(b)(1) of this title, after a final determination is 

8 issued under section 8102(b)(1), that suspension of payments, termi9 nation of the contract, suspension or debarment of the contractor, or 

10 refusal to permit a person to be treated as a responsible source for a 

11 contract would severely disrupt the operation of the agency to the det12 riment of the Federal Government or the general public; or 

13 (2) in the case of a grant, the head of the agency determines that 

14 suspension of payments, termination of the grant, or suspension or de15 barment of the grantee would not be in the public interest. 

16 (b) WAIVER AUTHORITY MAY NOT BE DELEGATED.—The authority of 

17 the head of an agency under this section to waive a suspension, termination, 

18 or debarment shall not be delegated. 

19 § 8106. Regulations 

20 Government-wide regulations governing actions under this chapter shall 

21 be issued pursuant to division B of subtitle I of this title. 

22 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. 

23 § 8301. Definitions 

24 In this chapter: 

25 (1) PUBLIC BUILDING, PUBLIC USE, AND PUBLIC WORK.—The terms 

26 ‘‘public building’’, ‘‘public use’’, and ‘‘public work’’ mean a public 

27 building of, use by, and a public work of, the Federal Government, the 

28 District of Columbia, Puerto Rico, American Samoa, and the Virgin Is29 lands. 

30 (2) UNITED STATES.—The term ‘‘United States’’ includes any place 

31 subject to the jurisdiction of the United States. 

32 § 8302. American materials required for public use 

33 (a) IN GENERAL.— 

34 (1) ALLOWABLE MATERIALS.—Only unmanufactured articles, mate35 rials, and supplies that have been mined or produced in the United 

36 States, and only manufactured articles, materials, and supplies that 

37 have been manufactured in the United States substantially all from arVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00194 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
195 

HR 1107 RH 

1 ticles, materials, or supplies mined, produced, or manufactured in the 

2 United States, shall be acquired for public use unless the head of the 

3 department or independent establishment concerned determines their 

4 acquisition to be inconsistent with the public interest or their cost to 

5 be unreasonable. 

6 (2) EXCEPTIONS.—This section does not apply— 

7 (A) to articles, materials, or supplies for use outside the United 

8 States; 

9 (B) if articles, materials, or supplies of the class or kind to be 

10 used, or the articles, materials, or supplies from which they are 

11 manufactured, are not mined, produced, or manufactured in the 

12 United States in sufficient and reasonably available commercial 

13 quantities and are not of a satisfactory quality; and 

14 (C) to manufactured articles, materials, or supplies procured 

15 under any contract with an award value that is not more than the 

16 micro-purchase threshold under section 1902 of this title. 

17 (b) REPORTS.— 

18 (1) IN GENERAL.—Not later than 180 days after the end of each of 

19 fiscal years 2009 through 2011, the head of each Federal agency shall 

20 submit to the Committee on Homeland Security and Governmental Af21 fairs of the Senate and the Committee on Oversight and Government 

22 Reform of the House of Representatives a report on the amount of the 

23 acquisitions made by the agency in that fiscal year of articles, mate24 rials, or supplies purchased from entities that manufacture the articles, 

25 materials, or supplies outside of the United States. 

26 (2) CONTENTS OF REPORT.—The report required by paragraph (1) 

27 shall separately include, for the fiscal year covered by the report— 

28 (A) the dollar value of any articles, materials, or supplies that 

29 were manufactured outside the United States; 

30 (B) an itemized list of all waivers granted with respect to the 

31 articles, materials, or supplies under this chapter, and a citation 

32 to the treaty, international agreement, or other law under which 

33 each waiver was granted; 

34 (C) if any articles, materials, or supplies were acquired from en35 tities that manufacture articles, materials, or supplies outside the 

36 United States, the specific exception under this section that was 

37 used to purchase the articles, materials, or supplies; and 

38 (D) a summary of— 

39 (i) the total procurement funds expended on articles, mate40 rials, and supplies manufactured inside the United States; 

41 and 


hsrobinson on PROD1PC76 with BILLS
196 

HR 1107 RH 

1 (ii) the total procurement funds expended on articles, mate2 rials, and supplies manufactured outside the United States. 

3 (3) PUBLIC AVAILABILITY.—The head of each Federal agency sub4 mitting a report under paragraph (1) shall make the report publicly 

5 available to the maximum extent practicable. 

6 (4) EXCEPTION FOR INTELLIGENCE COMMUNITY.—This subsection 

7 shall not apply to acquisitions made by an agency, or component of an 

8 agency, that is an element of the intelligence community as specified 

9 in, or designated under, section 3 of the National Security Act of 1947 

10 (50 U.S.C. 401a). 

11 § 8303. Contracts for public works 

12 (a) IN GENERAL.—Every contract for the construction, alteration, or re13 pair of any public building or public work in the United States shall contain 

14 a provision that in the performance of the work the contractor, subcontrac15 tors, material men, or suppliers shall use only— 

16 (1) unmanufactured articles, materials, and supplies that have been 

17 mined or produced in the United States; and 

18 (2) manufactured articles, materials, and supplies that have been 

19 manufactured in the United States substantially all from articles, mate20 rials, or supplies mined, produced, or manufactured in the United 

21 States. 

22 (b) EXCEPTIONS.— 

23 (1) IN GENERAL.—This section does not apply— 

24 (A) to articles, materials, or supplies for use outside the United 

25 States; 

26 (B) if articles, materials, or supplies of the class or kind to be 

27 used, or the articles, materials, or supplies from which they are 

28 manufactured, are not mined, produced, or manufactured in the 

29 United States in sufficient and reasonably available commercial 

30 quantities and are not of a satisfactory quality; and 

31 (C) to manufactured articles, materials, or supplies procured 

32 under any contract with an award value that is not more than the 

33 micro-purchase threshold under section 1902 of this title. 

34 (2) PARTICULAR ARTICLE, MATERIAL, OR SUPPLY.—If the head of 

35 the department or independent establishment making the contract finds 

36 that it is impracticable to comply with subsection (a) for a particular 

37 article, material, or supply or that it would unreasonably increase the 

38 cost, an exception shall be noted in the specifications for that article, 

39 material, or supply and a public record of the findings that justified 

40 the exception shall be made. 


hsrobinson on PROD1PC76 with BILLS
197 

HR 1107 RH 

1 (3) INCONSISTENT WITH PUBLIC INTEREST.—Subsection (a) shall be 

2 regarded as requiring the purchase, for public use within the United 

3 States, of articles, materials, or supplies manufactured in the United 

4 States in sufficient and reasonably available commercial quantities and 

5 of a satisfactory quality, unless the head of the department or inde6 pendent establishment concerned determines their purchase to be in7 consistent with the public interest or their cost to be unreasonable. 

8 (c) RESULTS OF FAILURE TO COMPLY.—If the head of a department, bu9 reau, agency, or independent establishment that has made a contract con10 taining the provision required by subsection (a) finds that there has been 

11 a failure to comply with the provision in the performance of the contract, 

12 the head of the department, bureau, agency, or independent establishment 

13 shall make the findings public. The findings shall include the name of the 

14 contractor obligated under the contract. The contractor, and any subcon15 tractor, material man, or supplier associated or affiliated with the con16 tractor, shall not be awarded another contract for the construction, alter17 ation, or repair of any public building or public work for 3 years after the 

18 findings are made public. 

19 § 8304. Waiver rescission 

20 (a) TYPE OF AGREEMENT.—An agreement referred to in subsection (b) 

21 is a reciprocal defense procurement memorandum of understanding between 

22 the United States and a foreign country pursuant to which the Secretary 

23 of Defense has prospectively waived this chapter for certain products in that 

24 country. 

25 (b) DETERMINATION BY SECRETARY OF DEFENSE.—If the Secretary of 

26 Defense, after consultation with the United States Trade Representative, 

27 determines that a foreign country that is party to an agreement described 

28 in subsection (a) has violated the agreement by discriminating against cer29 tain types of products produced in the United States that are covered by 

30 the agreement, the Secretary of Defense shall rescind the Secretary’s blan31 ket waiver of this chapter with respect to those types of products produced 

32 in that country. 

33 § 8305. Annual report 

34 Not later than 60 days after the end of each fiscal year, the Secretary 

35 of Defense shall submit to Congress a report on the amount of purchases 

36 by the Department of Defense from foreign entities in that fiscal year. The 

37 report shall separately indicate the dollar value of items for which this chap38 ter was waived pursuant to— 

39 (1) a reciprocal defense procurement memorandum of understanding 

40 described in section 8304(a) of this title; 

41 (2) the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.); or 


hsrobinson on PROD1PC76 with BILLS
198 

HR 1107 RH 

1 (3) an international agreement to which the United States is a party. 

2 CHAPTER 85—COMMITTEE FOR PURCHASE FROM 

3 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. 

4 § 8501. Definitions 

5 In this chapter: 

6 (1) BLIND.—The term ‘‘blind’’ refers to an individual or class of in7 dividuals whose central visual acuity does not exceed 20/200 in the bet8 ter eye with correcting lenses or whose visual acuity, if better than 20/ 

9 200, is accompanied by a limit to the field of vision in the better eye 

10 to such a degree that its widest diameter subtends an angle of no 

11 greater than 20 degrees. 

12 (2) COMMITTEE.—The term ‘‘Committee’’ means the Committee for 

13 Purchase From People Who Are Blind or Severely Disabled established 

14 under section 8502 of this title. 

15 (3) DIRECT LABOR.—The term ‘‘direct labor’’— 

16 (A) includes all work required for preparation, processing, and 

17 packing of a product, or work directly relating to the performance 

18 of a service; but 

19 (B) does not include supervision, administration, inspection, or 

20 shipping. 

21 (4) ENTITY OF THE FEDERAL GOVERNMENT AND FEDERAL GOVERN22 MENT.—The terms ‘‘entity of the Federal Government’’ and ‘‘Federal 

23 Government’’ include an entity of the legislative or judicial branch, a 

24 military department or executive agency (as defined in sections 102 

25 and 105 of title 5, respectively), the United States Postal Service, and 

26 a nonappropriated fund instrumentality under the jurisdiction of the 

27 Armed Forces. 

28 (5) OTHER SEVERELY DISABLED.—The term ‘‘other severely dis29 abled’’ means an individual or class of individuals under a physical or 

30 mental disability, other than blindness, which (according to criteria es31 tablished by the Committee after consultation with appropriate entities 

32 of the Federal Government and taking into account the views of non33 Federal Government entities representing the disabled) constitutes a 

34 substantial handicap to employment and is of a nature that prevents 

35 the individual from currently engaging in normal competitive employ36 ment. 


hsrobinson on PROD1PC76 with BILLS
199 

HR 1107 RH 

1 (6) QUALIFIED NONPROFIT AGENCY FOR OTHER SEVERELY DIS2 ABLED.—The term ‘‘qualified nonprofit agency for other severely dis3 abled’’ means an agency— 

4 (A)(i) organized under the laws of the United States or a State; 

5 (ii) operated in the interest of severely disabled individuals who 

6 are not blind; and 

7 (iii) of which no part of the net income of the agency inures 

8 to the benefit of a shareholder or other individual; 

9 (B) that complies with any applicable occupational health and 

10 safety standard prescribed by the Secretary of Labor; and 

11 (C) that in the production of products and in the provision of 

12 services (whether or not the products or services are procured 

13 under this chapter) during the fiscal year employs blind or other 

14 severely disabled individuals for at least 75 percent of the hours 

15 of direct labor required for the production or provision of the 

16 products or services. 

17 (7) QUALIFIED NONPROFIT AGENCY FOR THE BLIND.—The term 

18 ‘‘qualified nonprofit agency for the blind’’ means an agency— 

19 (A)(i) organized under the laws of the United States or a State; 

20 (ii) operated in the interest of blind individuals; and 

21 (iii) of which no part of the net income of the agency inures 

22 to the benefit of a shareholder or other individual; 

23 (B) that complies with any applicable occupational health and 

24 safety standard prescribed by the Secretary of Labor; and 

25 (C) that in the production of products and in the provision of 

26 services (whether or not the products or services are procured 

27 under this chapter) during the fiscal year employs blind individ28 uals for at least 75 percent of the hours of direct labor required 

29 for the production or provision of the products or services. 

30 (8) SEVERELY DISABLED INDIVIDUAL.—The term ‘‘severely disabled 

31 individual’’ means an individual or class of individuals under a physical 

32 or mental disability, other than blindness, which (according to criteria 

33 established by the Committee after consultation with appropriate enti34 ties of the Federal Government and taking into account the views of 

35 non-Federal Government entities representing the disabled) constitutes 

36 a substantial handicap to employment and is of a nature that prevents 

37 the individual from currently engaging in normal competitive employ38 ment. 

39 (9) STATE.—The term ‘‘State’’ includes the District of Columbia, 

40 Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 

41 Northern Mariana Islands. 


hsrobinson on PROD1PC76 with BILLS
200 

HR 1107 RH 

1 § 8502. Committee for Purchase From People Who Are Blind 

2 or Severely Disabled 

3 (a) ESTABLISHMENT.—There is a Committee for Purchase From People 

4 Who Are Blind or Severely Disabled. 

5 (b) COMPOSITION.—The Committee consists of 15 members appointed by 

6 the President as follows: 

7 (1) One officer or employee from each of the following, nominated 

8 by the head of the department or agency: 

9 (A) The Department of Agriculture. 

10 (B) The Department of Defense. 

11 (C) The Department of the Army. 

12 (D) The Department of the Navy. 

13 (E) The Department of the Air Force. 

14 (F) The Department of Education. 

15 (G) The Department of Commerce. 

16 (H) The Department of Veterans Affairs. 

17 (I) The Department of Justice. 

18 (J) The Department of Labor. 

19 (K) The General Services Administration. 

20 (2) One member from individuals who are not officers or employees 

21 of the Federal Government and who are conversant with the problems 

22 incident to the employment of the blind. 

23 (3) One member from individuals who are not officers or employees 

24 of the Federal Government and who are conversant with the problems 

25 incident to the employment of other severely disabled individuals. 

26 (4) One member from individuals who are not officers or employees 

27 of the Federal Government and who represent blind individuals em28 ployed in qualified nonprofit agencies for the blind. 

29 (5) One member from individuals who are not officers or employees 

30 of the Federal Government and who represent severely disabled individ31 uals (other than blind individuals) employed in qualified nonprofit 

32 agencies for other severely disabled individuals. 

33 (c) TERMS OF OFFICE.—Members appointed under paragraph (2), (3), 

34 (4), or (5) of subsection (b) shall be appointed for terms of 5 years and 

35 may be reappointed if the member meets the qualifications prescribed by 

36 those paragraphs. 

37 (d) CHAIRMAN.—The members of the Committee shall elect one of the 

38 members to be Chairman. 

39 (e) VACANCY.— 


hsrobinson on PROD1PC76 with BILLS
201 

HR 1107 RH 

1 (1) MANNER IN WHICH FILLED.—A vacancy in the membership of 

2 the Committee shall be filled in the manner in which the original ap3 pointment was made. 

4 (2) UNFULFILLED TERM.—A member appointed under paragraph 

5 (2), (3), (4), or (5) of subsection (b) to fill a vacancy occurring prior 

6 to the expiration of the term for which the predecessor was appointed 

7 shall be appointed only for the remainder of the term. The member 

8 may serve after the expiration of a term until a successor takes office. 

9 (f) PAY AND TRAVEL EXPENSES.— 

10 (1) AMOUNT TO WHICH MEMBERS ARE ENTITLED.—Except as pro11 vided in paragraph (2), members of the Committee are entitled to re12 ceive the daily equivalent of the maximum annual rate of basic pay 

13 payable under section 5376 of title 5 for each day (including travel14 time) during which they perform services for the Committee. A member 

15 is entitled to travel expenses, including a per diem allowance instead 

16 of subsistence, as provided under section 5703 of title 5. 

17 (2) OFFICERS OR EMPLOYEES OF THE FEDERAL GOVERNMENT.— 

18 Members who are officers or employees of the Federal Government may 

19 not receive additional pay because of their service on the Committee. 

20 (g) STAFF.— 

21 (1) APPOINTMENT AND COMPENSATION.—Subject to rules the Com22 mittee may adopt and to chapters 33 and 51 and subchapter III of 

23 chapter 53 of title 5, the Chairman may appoint and fix the pay of 

24 personnel the Committee determines are necessary to assist it in car25 rying out this chapter. 

26 (2) PERSONNEL FROM OTHER ENTITIES.—On request of the Com27 mittee, the head of an entity of the Federal Government may detail, 

28 on a reimbursable basis, any personnel of the entity to the Committee 

29 to assist it in carrying out this chapter. 

30 (h) OBTAINING OFFICIAL INFORMATION.—The Committee may secure di31 rectly from an entity of the Federal Government information necessary to 

32 enable it to carry out this chapter. On request of the Chairman, the head 

33 of the entity shall furnish the information to the Committee. 

34 (i) ADMINISTRATIVE SUPPORT SERVICES.—The Administrator of General 

35 Services shall provide to the Committee, on a reimbursable basis, adminis36 trative support services the Committee requests. 

37 (j) ANNUAL REPORT.—Not later than December 31 of each year, the 

38 Committee shall transmit to the President a report that includes the names 

39 of the Committee members serving in the prior fiscal year, the dates of 

40 Committee meetings in that year, a description of the activities of the ComVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00201 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
202 

HR 1107 RH 

1 mittee under this chapter in that year, and any recommendations for 

2 changes in this chapter which the Committee determines are necessary. 

3 § 8503. Duties and powers of the Committee 

4 (a) PROCUREMENT LIST.— 

5 (1) MAINTENANCE OF LIST.—The Committee shall maintain and 

6 publish in the Federal Register a procurement list. The list shall in7 clude the following products and services determined by the Committee 

8 to be suitable for the Federal Government to procure pursuant to this 

9 chapter: 

10 (A) Products produced by a qualified nonprofit agency for the 

11 blind or by a qualified nonprofit agency for other severely disabled. 

12 (B) The services those agencies provide. 

13 (2) CHANGES TO LIST.—The Committee may, by rule made in ac14 cordance with the requirements of section 553(b) to (e) of title 5, add 

15 to and remove from the procurement list products so produced and 

16 services so provided. 

17 (b) FAIR MARKET PRICE.—The Committee shall determine the fair mar18 ket price of products and services contained on the procurement list that 

19 are offered for sale to the Federal Government by a qualified nonprofit 

20 agency for the blind or a qualified nonprofit agency for other severely dis21 abled. The Committee from time to time shall revise its price determinations 

22 with respect to those products and services in accordance with changing 

23 market conditions. 

24 (c) CENTRAL NONPROFIT AGENCY OR AGENCIES.—The Committee shall 

25 designate a central nonprofit agency or agencies to facilitate the distribu26 tion, by direct allocation, subcontract, or any other means, of orders of the 

27 Federal Government for products and services on the procurement list 

28 among qualified nonprofit agencies for the blind or qualified nonprofit agen29 cies for other severely disabled. 

30 (d) REGULATIONS.—The Committee— 

31 (1) may prescribe regulations regarding specifications for products 

32 and services on the procurement list, the time of their delivery, and 

33 other matters as necessary to carry out this chapter; and 

34 (2) shall prescribe regulations providing that when the Federal Gov35 ernment purchases products produced and offered for sale by qualified 

36 nonprofit agencies for the blind or qualified nonprofit agencies for 

37 other severely disabled, priority shall be given to products produced and 

38 offered for sale by qualified nonprofit agencies for the blind. 

39 (e) STUDY AND EVALUATION OF ACTIVITIES.—The Committee shall 

40 make a continuing study and evaluation of its activities under this chapter 

41 to ensure effective and efficient administration of this chapter. The ComVerDate Nov 24 2008 21:15 Mar 25, 2009 Jkt 079200 PO 00000 Frm 00202 Fmt 6652 Sfmt 6221 E:\BILLS\H1107.RH H1107

hsrobinson on PROD1PC76 with BILLS
203 

HR 1107 RH 

1 mittee on its own or in cooperation with other public or nonprofit private 

2 agencies may study— 

3 (1) problems related to the employment of the blind and other se4 verely disabled individuals; and 

5 (2) the development and adaptation of production methods that 

6 would enable a greater utilization of the blind and other severely dis7 abled individuals. 

8 § 8504. Procurement requirements for the Federal Govern9 ment 

10 (a) IN GENERAL.—An entity of the Federal Government intending to pro11 cure a product or service on the procurement list referred to in section 8503 

12 of this title shall procure the product or service from a qualified nonprofit 

13 agency for the blind or a qualified nonprofit agency for other severely dis14 abled in accordance with regulations of the Committee and at the price the 

15 Committee establishes if the product or service is available within the period 

16 required by the entity. 

17 (b) EXCEPTION.—This section does not apply to the procurement of a 

18 product that is available from an industry established under chapter 307 

19 of title 18 and that is required under section 4124 of title 18 to be procured 

20 from that industry. 

21 § 8505. Audit 

22 For the purpose of audit and examination, the Comptroller General shall 

23 have access to the books, documents, papers, and other records of— 

24 (1) the Committee and of each central nonprofit agency the Com25 mittee designates under section 8503(c) of this title; and 

26 (2) qualified nonprofit agencies for the blind and qualified nonprofit 

27 agencies for other severely disabled that have sold products or services 

28 under this chapter to the extent those books, documents, papers, and 

29 other records relate to the activities of the agency in a fiscal year in 

30 which a sale was made under this chapter. 

31 § 8506. Authorization of appropriations 

32 Necessary amounts may be appropriated to the Committee to carry out 

33 this chapter. 

34 CHAPTER 87—KICKBACKS 

Sec. 

8701. Definitions. 

8702. Prohibited conduct. 

8703. Contractor responsibilities. 

8704. Inspection authority. 

8705. Administrative offsets. 

8706. Civil actions. 

8707. Criminal penalties. 

35 § 8701. Definitions 

36 In this chapter: 


hsrobinson on PROD1PC76 with BILLS
204 

HR 1107 RH 

1 (1) CONTRACTING AGENCY.—The term ‘‘contracting agency’’, when 

2 used with respect to a prime contractor, means a department, agency, 

3 or establishment of the Federal Government that enters into a prime 

4 contract with a prime contractor. 

5 (2) KICKBACK.—The term ‘‘kickback’’ means any money, fee, com6 mission, credit, gift, gratuity, thing of value, or compensation of any 

7 kind that is provided to a prime contractor, prime contractor employee, 

8 subcontractor, or subcontractor employee to improperly obtain or re9 ward favorable treatment in connection with a prime contract or a sub10 contract relating to a prime contract. 

11 (3) PRIME CONTRACT.—The term ‘‘prime contract’’ means a con12 tract or contractual action entered into by the Federal Government to 

13 obtain supplies, materials, equipment, or services of any kind. 

14 (4) PRIME CONTRACTOR.—The term ‘‘prime contractor’’ means a 

15 person that has entered into a prime contract with the Federal Govern16 ment. 

17 (5) PRIME CONTRACTOR EMPLOYEE.—The term ‘‘prime contractor 

18 employee’’ means an officer, partner, employee, or agent of a prime 

19 contractor. 

20 (6) SUBCONTRACT.—The term ‘‘subcontract’’ means a contract or 

21 contractual action entered into by a prime contractor or subcontractor 

22 to obtain supplies, materials, equipment, or services of any kind under 

23 a prime contract. 

24 (7) SUBCONTRACTOR.—The term ‘‘subcontractor’’— 

25 (A) means a person, other than the prime contractor, that offers 

26 to furnish or furnishes supplies, materials, equipment, or services 

27 of any kind under a prime contract or a subcontract entered into 

28 in connection with the prime contract; and 

29 (B) includes a person that offers to furnish or furnishes general 

30 supplies to the prime contractor or a higher tier subcontractor. 

31 (8) SUBCONTRACTOR EMPLOYEE.—The term ‘‘subcontractor em32 ployee’’ means an officer, partner, employee, or agent of a subcon33 tractor. 

34 § 8702. Prohibited conduct 

35 A person may not— 

36 (1) provide, attempt to provide, or offer to provide a kickback; 

37 (2) solicit, accept, or attempt to accept a kickback; or 

38 (3) include the amount of a kickback prohibited by paragraph (1) 

39 or (2) in the contract price— 

40 (A) a subcontractor charges a prime contractor or a higher tier 

41 subcontractor; or 


hsrobinson on PROD1PC76 with BILLS
205 

HR 1107 RH 

1 (B) a prime contractor charges the Federal Government. 

2 § 8703. Contractor responsibilities 

3 (a) REQUIREMENTS INCLUDED IN CONTRACTS.—Each contracting agency 

4 shall include in each prime contract awarded by the agency a requirement 

5 that the prime contractor shall— 

6 (1) have in place and follow reasonable procedures designed to pre7 vent and detect violations of section 8702 of this title in its own oper8 ations and direct business relationships; and 

9 (2) cooperate fully with a Federal Government agency investigating 

10 a violation of section 8702 of this title. 

11 (b) FULL COOPERATION REQUIRED.—Notwithstanding subsection (d), a 

12 prime contractor shall cooperate fully with a Federal Government agency in13 vestigating a violation of section 8702 of this title. 

14 (c) REPORTING REQUIREMENT.— 

15 (1) IN GENERAL.—A prime contractor or subcontractor that has rea16 sonable grounds to believe that a violation of section 8702 of this title 

17 may have occurred shall promptly report the possible violation in writ18 ing to the inspector general of the contracting agency, the head of the 

19 contracting agency if the agency does not have an inspector general, 

20 or the Attorney General. 

21 (2) SUPPLYING INFORMATION AS FAVORABLE EVIDENCE.—In an ad22 ministrative or contractual action to suspend or debar a person who is 

23 eligible to enter into contracts with the Federal Government, evidence 

24 that the person has supplied information to the Federal Government 

25 pursuant to paragraph (1) is favorable evidence of the person’s respon26 sibility for the purposes of Federal procurement laws and regulations. 

27 (d) INAPPLICABILITY TO CERTAIN PRIME CONTRACTS.—Subsection (a) 

28 does not apply to a prime contract— 

29 (1) that is not greater than $100,000; or 

30 (2) for the acquisition of commercial items (as defined in section 103 

31 of this title). 

32 § 8704. Inspection authority 

33 (a) IN GENERAL.—To ascertain whether there has been a violation of sec34 tion 8702 of this title with respect to a prime contract, the Comptroller 

35 General and the inspector general of the contracting agency, or a represent36 ative of the contracting agency designated by the head of the agency if the 

37 agency does not have an inspector general, shall have access to and may 

38 inspect the facilities and audit the books and records, including electronic 

39 data or records, of a prime contractor or subcontractor under a prime con40 tract awarded by the agency. 


hsrobinson on PROD1PC76 with BILLS
206 

HR 1107 RH 

1 (b) EXCEPTION.—This section does not apply to a prime contract for the 

2 acquisition of commercial items (as defined in section 103 of this title). 

3 § 8705. Administrative offsets 

4 (a) DEFINITION.—In this section, the term ‘‘contracting officer’’ has the 

5 meaning given that term in chapter 71 of this title. 

6 (b) OFFSET AUTHORITY.—A contracting officer of a contracting agency 

7 may offset the amount of a kickback provided, accepted, or charged in viola8 tion of section 8702 of this title against amounts the Federal Government 

9 owes the prime contractor under the prime contract to which the kickback 

10 relates. 

11 (c) DUTIES OF PRIME CONTRACTOR.— 

12 (1) WITHHOLDING AND PAYING OVER OR RETAINING AMOUNTS.—On 

13 direction of a contracting officer of a contracting agency with respect 

14 to a prime contract, the prime contractor shall withhold from amounts 

15 owed to a subcontractor under a subcontract of the prime contract the 

16 amount of a kickback which was or may be offset against the prime 

17 contractor under subsection (b). The contracting officer may order that 

18 amounts withheld— 

19 (A) be paid over to the contracting agency; or 

20 (B) be retained by the prime contractor if the Federal Govern21 ment has already offset the amount against the prime contractor. 

22 (2) NOTICE.—The prime contractor shall notify the contracting offi23 cer when an amount is withheld and retained under paragraph (1)(B). 

24 (d) OFFSET, DIRECTION, OR ORDER IS CLAIM OF FEDERAL GOVERN25 MENT.—An offset under subsection (b) or a direction or order of a con26 tracting officer under subsection (c) is a claim by the Federal Government 

27 for the purposes of chapter 71 of this title. 

28 § 8706. Civil actions 

29 (a) AMOUNT.—The Federal Government in a civil action may recover 

30 from a person— 

31 (1) that knowingly engages in conduct prohibited by section 8702 of 

32 this title a civil penalty equal to— 

33 (A) twice the amount of each kickback involved in the violation; 

34 and 

35 (B) not more than $10,000 for each occurrence of prohibited 

36 conduct; and 

37 (2) whose employee, subcontractor, or subcontractor employee vio38 lates section 8702 of this title by providing, accepting, or charging a 

39 kickback a civil penalty equal to the amount of that kickback. 

40 (b) STATUTE OF LIMITATIONS.—A civil action under this section must be 

41 brought within 6 years after the later of the date on which— 


hsrobinson on PROD1PC76 with BILLS
207 

HR 1107 RH 

1 (1) the prohibited conduct establishing the cause of action occurred; 

2 or 

3 (2) the Federal Government first knew or should reasonably have 

4 known that the prohibited conduct had occurred. 

5 § 8707. Criminal penalties 

6 A person that knowingly and willfully engages in conduct prohibited by 

7 section 8702 of this title shall be fined under title 18, imprisoned for not 

8 more than 10 years, or both. 

9 SEC. 4. CONFORMING AMENDMENT. 

10 Section 2410i(b)(1) of title 10, United States Code, is amended by strik11 ing ‘‘small purchase threshold’’ and substituting ‘‘simplified acquisition 

12 threshold’’. 

13 SEC. 5. CONFORMING CROSS-REFERENCES. 

14 (a) TITLE 5.—Title 5, United States Code, is amended as follows: 

15 (1) In section 504(b)(1)(C)(ii)— 

16 (A) strike ‘‘section 6 of the Contract Disputes Act of 1978 (41 

17 U.S.C. 605)’’ and substitute ‘‘section 7103 of title 41’’; and 

18 (B) strike ‘‘section 8 of that Act (41 U.S.C. 607)’’ and sub19 stitute ‘‘section 7105 of title 41’’. 

20 (2) In section 551(1)(H), strike ‘‘chapter 2 of title 41;’’. 

21 (3) In section 701(b)(1)(H), strike ‘‘chapter 2 of title 41;’’. 

22 (4) In section 3109(b)(3), strike ‘‘section 5’’ and substitute ‘‘section 

23 6101(b) to (d)’’. 

24 (5) In section 3374(c)(2), strike ‘‘section 27 of the Office of Federal 

25 Procurement Policy Act’’ and substitute ‘‘chapter 21 of title 41’’. 

26 (6) In section 3704(b)(2)(G), strike ‘‘section 27 of the Office of Fed27 eral Procurement Policy Act’’ and substitute ‘‘chapter 21 of title 41’’. 

28 (7) In section 4105, strike ‘‘section 5’’ and substitute ‘‘section 

29 6101(b) to (d)’’. 

30 (8) In section 5102(c)(30), strike ‘‘section 8 of the Contract Dis31 putes Act of 1978’’ and substitute ‘‘section 7105(a)(2), (c)(2), or 

32 (d)(2) of title 41’’. 

33 (9) In section 5372a— 

34 (A) in subsection (a)(1)— 

35 (i) strike ‘‘section 8 of the Contract Disputes Act of 1978’’ 

36 and substitute ‘‘section 7105(a)(2), (c)(2), or (d)(2) of title 

37 41’’; and 

38 (ii) strike ‘‘section 42 of the Office of Federal Procurement 

39 Policy Act’’ and substitute ‘‘section 7105(b)(2) of title 41’’; 

40 and 


hsrobinson on PROD1PC76 with BILLS
208 

HR 1107 RH 

1 (B) in subsection (a)(2), strike ‘‘section 8 of the Contract Dis2 putes Act of 1978’’ and substitute ‘‘section 7105(a)(1), (c)(1), or 

3 (d)(1) of title 41’’. 

4 (10) In section 7342(e)(1), strike ‘‘title III of the Federal Property 

5 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

6 substitute ‘‘division C of subtitle I of title 41’’. 

7 (11) In section 8709(a), strike ‘‘section 5’’ and substitute ‘‘section 

8 6101(b) to (d)’’. 

9 (12) In section 8714a(a), strike ‘‘section 5’’ and substitute ‘‘section 

10 6101(b) to (d)’’. 

11 (13) In section 8714b(a), strike ‘‘section 5’’ and substitute ‘‘section 

12 6101(b) to (d)’’. 

13 (14) In section 8714c(a), strike ‘‘section 5’’ and substitute ‘‘section 

14 6101(b) to (d)’’. 

15 (15) In section 8902(a), strike ‘‘section 5’’ and substitute ‘‘section 

16 6101(b) to (d)’’. 

17 (16) In section 8953(a)(1), strike ‘‘section 5’’ and substitute ‘‘sec18 tion 6101(b) to (d)’’. 

19 (17) In section 8983(a)(1), strike ‘‘section 5’’ and substitute ‘‘sec20 tion 6101(b) to (d)’’. 

21 (18) In section 9003— 

22 (A) in subsection (a), strike ‘‘section 5’’ and substitute ‘‘section 

23 6101(b) to (d)’’; 

24 (B) in subsection (c)(3), before subparagraph (A), strike ‘‘the 

25 Contract Disputes Act of 1978’’ and substitute ‘‘chapter 71 of 

26 title 41’’; 

27 (C) in subsection (c)(3)(A), strike ‘‘(after appropriate arrange28 ments, as described in section 8(c) of such Act)’’; and 

29 (D) in subsection (c)(3)(B), strike ‘‘section 10(a)(1) of such 

30 Act’’ and substitute ‘‘section 7104(b)(1) of title 41’’. 

31 (19) In section 9009, strike ‘‘section 26(f) of the Office of Federal 

32 Procurement Policy Act (41 U.S.C. 422(f))’’ and substitute ‘‘section 

33 1502(a) and (b) of title 41’’. 

34 (b) TITLE 10.—Title 10, United States Code, is amended as follows: 

35 (1) In section 133(c)(1), strike ‘‘section 16(c) of the Office of Fed36 eral Procurement Policy Act (41 U.S.C. 414(c))’’ and substitute ‘‘sec37 tion 1702(c) of title 41’’. 

38 (2) In section 2013(a), strike ‘‘section 3709 of the Revised Statutes 

39 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b)–(d) of title 41’’. 


hsrobinson on PROD1PC76 with BILLS
209 

HR 1107 RH 

1 (3) In section 2194(b)(2), strike ‘‘title III of the Federal Property 

2 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

3 substitute ‘‘division C of subtitle I of title 41’’. 

4 (4) In section 2201— 

5 (A) in subsection (b), strike ‘‘section 3732(a) of the Revised 

6 Statutes (41 U.S.C. 11(a))’’ and substitute ‘‘section 6301(a) and 

7 (b)(1)–(3) of title 41’’; and 

8 (B) in subsection (c), strike ‘‘section 3732(a) of the Revised 

9 Statutes (41 U.S.C. 11(a))’’ and substitute ‘‘section 6301(a) and 

10 (b)(1)–(3) of title 41’’. 

11 (5) In section 2207(b), strike ‘‘section 4(11) of the Office of Federal 

12 Procurement Policy Act (41 U.S.C. 403(11))’’ and substitute ‘‘section 

13 134 of title 41’’. 

14 (6) In section 2225(f)— 

15 (A) in paragraph (1), strike ‘‘section 16(c) of the Office of Fed16 eral Procurement Policy Act (41 U.S.C. 414(c))’’ and substitute 

17 ‘‘section 1702(c) of title 41’’; and 

18 (B) in paragraph (2), strike ‘‘section 4(11) of the Office of Fed19 eral Procurement Policy Act (41 U.S.C. 403(11))’’ and substitute 

20 ‘‘section 134 of title 41’’. 

21 (7) In section 2226(b), strike ‘‘section 4(12) of the Office of Federal 

22 Procurement Policy Act (41 U.S.C. 403(12))’’ and substitute ‘‘section 

23 103 of title 41’’. 

24 (8) In section 2302— 

25 (A) in paragraph (3), strike ‘‘section 4 of the Office of Federal 

26 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘chapter 

27 1 of title 41’’; 

28 (B) in paragraph (6), strike ‘‘section 25(c)(1) of the Office of 

29 Federal Procurement Policy Act (41 U.S.C. 421(c)(1))’’ and sub30 stitute ‘‘section 1303(a)(1) of title 41’’; and 

31 (C) in paragraph (7), strike ‘‘section 4 of the Office of Federal 

32 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 

33 134 of title 41’’. 

34 (9) In section 2302a— 

35 (A) in subsection (a), strike ‘‘section 4(11) of the Office of Fed36 eral Procurement Policy Act’’ and substitute ‘‘section 134 of title 

37 41’’; and 

38 (B) in subsection (b), strike ‘‘section 33 of the Office of Federal 

39 Procurement Policy Act’’ and substitute ‘‘section 1905 of title 

40 41’’. 


hsrobinson on PROD1PC76 with BILLS
210 

HR 1107 RH 

1 (10) In section 2302b, strike ‘‘section 31 of the Office of Federal 

2 Procurement Policy Act’’ and substitute ‘‘section 1901 of title 41’’. 

3 (11) In section 2302c— 

4 (A) in subsection (a)(1), strike ‘‘section 30 of the Office of Fed5 eral Procurement Policy Act (41 U.S.C. 426)’’ and substitute 

6 ‘‘section 2301 of title 41’’; and 

7 (B) in subsection (b), strike ‘‘section 16(c) of the Office of Fed8 eral Procurement Policy Act (41 U.S.C. 414(c))’’ and substitute 

9 ‘‘section 1702(c) of title 41’’. 

10 (12) In section 2304— 

11 (A) in subsection (f)(1)(B)(iii), strike ‘‘section 16(c) of the Of12 fice of Federal Procurement Policy Act (41 U.S.C. 414(c))’’ and 

13 substitute ‘‘section 1702(c) of title 41’’; 

14 (B) in subsection (f)(1)(C), strike ‘‘section 18 of the Office of 

15 Federal Procurement Policy Act (41 U.S.C. 416)’’ and substitute 

16 ‘‘section 1708 of title 41’’; 

17 (C) in subsection (f)(2)(D), strike ‘‘the Javits-Wagner-O’Day 

18 Act (41 U.S.C. 46 et seq.)’’ and substitute ‘‘chapter 85 of title 

19 41’’; 

20 (D) in subsection (g)(4), strike ‘‘section 31(f) of the Office of 

21 Federal Procurement Policy Act (41 U.S.C. 427)’’ and substitute 

22 ‘‘section 1901(e) of title 41’’; and 

23 (E) in subsection (h)(1), strike ‘‘The Walsh-Healey Act (41 

24 U.S.C. 35 et seq.)’’ and substitute ‘‘Chapter 65 of title 41’’. 

25 (13) In section 2304b— 

26 (A) in subsection (c), strike ‘‘section 18 of the Office of Federal 

27 Procurement Policy Act (41 U.S.C. 416)’’ and substitute ‘‘section 

28 1708 of title 41’’; and 

29 (B) in subsection (f)(3), strike ‘‘section 18 of the Office of Fed30 eral Procurement Policy Act (41 U.S.C. 416)’’ and substitute 

31 ‘‘section 1708 of title 41’’. 

32 (14) In section 2304c(a)(1), strike ‘‘section 18 of the Office of Fed33 eral Procurement Policy Act (41 U.S.C. 416)’’ and substitute ‘‘section 

34 1708 of title 41’’. 

35 (15) In section 2306a(h)(3), strike ‘‘section 4(12) of the Office of 

36 Federal Procurement Policy Act (41 U.S.C. 403(12))’’ and substitute 

37 ‘‘section 103 of title 41’’. 

38 (16) In section 2314, strike ‘‘Sections 3709 and 3735 of the Revised 

39 Statutes (41 U.S.C. 5 and 13)’’ and substitute ‘‘Sections 6101(b)–(d) 

40 and 6304 of title 41’’. 

41 (17) In section 2318— 


hsrobinson on PROD1PC76 with BILLS
211 

HR 1107 RH 

1 (A) in subsection (a)(1), strike ‘‘section 20(a) of the Office of 

2 Federal Procurement Policy Act (41 U.S.C. 418(a))’’ and sub3 stitute ‘‘section 1705(a) of title 41’’; and 

4 (B) in subsection (a)(2), strike ‘‘sections 20(b) and 20(c) of the 

5 Office of Federal Procurement Policy Act (41 U.S.C. 418(b), (c))’’ 

6 and substitute ‘‘section 1705(b) and (c) of title 41’’. 

7 (18) In section 2321(h), strike ‘‘the Contract Disputes Act of 1978 

8 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 71 of title 41’’. 

9 (19) In section 2324— 

10 (A) in subsection (d)(1), strike ‘‘section 6 of the Contract Dis11 putes Act of 1978 (41 U.S.C. 605)’’ and substitute ‘‘section 7103 

12 of title 41’’; 

13 (B) in subsection (d)(2), strike ‘‘section 7 of such Act (41 

14 U.S.C. 606)’’ and substitute ‘‘section 7104(a) of title 41’’; 

15 (C) in subsection (e)(1)(P), strike ‘‘section 39 of the Office of 

16 Federal Procurement Policy Act (41 U.S.C. 435)’’ and substitute 

17 ‘‘section 1127 of title 41’’; and 

18 (D) in subsection (e)(2)(C), strike ‘‘(41 U.S.C. 10b–1)’’ and 

19 substitute ‘‘(as added by section 7002(2) of the Omnibus Trade 

20 and Competitiveness Act of 1988)’’. 

21 (20) In section 2343, strike ‘‘section 3741 of the Revised Statutes 

22 (41 U.S.C. 22)’’ and substitute ‘‘section 6306 of title 41’’. 

23 (21) In section 2375(b), strike ‘‘section 34 of the Office of Federal 

24 Procurement Policy Act (41 U.S.C. 430)’’ and substitute ‘‘section 1906 

25 of title 41’’. 

26 (22) In section 2376(1), strike ‘‘section 4 of the Office of Federal 

27 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘chapter 1 

28 of title 41’’. 

29 (23) In section 2384— 

30 (A) in subsection (b)(2), strike ‘‘section 4(12) of the Office of 

31 Federal Procurement Policy Act (41 U.S.C. 403(12)))’’ and sub32 stitute ‘‘section 103 of title 41)’’; and 

33 (B) in subsection (b)(3), strike ‘‘section 4(11) of the Office of 

34 Federal Procurement Policy Act (41 U.S.C. 403(11)))’’ and sub35 stitute ‘‘section 134 of title 41)’’. 

36 (24) In section 2393(d)— 

37 (A) strike ‘‘section 4(11) of the Office of Federal Procurement 

38 Policy Act (41 U.S.C. 403(11)))’’ and substitute ‘‘section 134 of 

39 title 41)’’; and 


hsrobinson on PROD1PC76 with BILLS
212 

HR 1107 RH 

1 (B) strike ‘‘section 4(12) of the Office of Federal Procurement 

2 Policy Act (41 U.S.C. 403(12)))’’ and substitute ‘‘section 103 of 

3 title 41)’’. 

4 (25) In section 2402— 

5 (A) in subsection (c), strike ‘‘section 4(11) of the Office of Fed6 eral Procurement Policy Act (41 U.S.C. 403(11)))’’ and substitute 

7 ‘‘section 134 of title 41)’’; and 

8 (B) in subsection (d)(2), strike ‘‘section 4(12) of the Office of 

9 Federal Procurement Policy Act (41 U.S.C. 403(12))’’ and sub10 stitute ‘‘section 103 of title 41’’. 

11 (26) In section 2408— 

12 (A) in subsection (a)(4)(A), strike ‘‘section 4(11) of the Office 

13 of Federal Procurement Policy Act (41 U.S.C. 403(11)))’’ and 

14 substitute ‘‘section 134 of title 41)’’; and 

15 (B) in subsection (a)(4)(B), strike ‘‘section 4(12) of the Office 

16 of Federal Procurement Policy Act (41 U.S.C. 403(12)))’’ and 

17 substitute ‘‘section 103 of title 41)’’. 

18 (27) In section 2410(c), strike ‘‘section 4(11) of the Office of Fed19 eral Procurement Policy Act’’ and substitute ‘‘section 134 of title 41’’. 

20 (28) In section 2410b(c), strike ‘‘section 4(12) of the Office of Fed21 eral Procurement Policy Act (41 U.S.C. 403(12)))’’ and substitute 

22 ‘‘section 103 of title 41)’’. 

23 (29) In section 2410d— 

24 (A) in subsection (b)(2)(A), strike ‘‘section 5(3) of the Javits25 Wagner-O’Day Act (41 U.S.C. 48b(3))’’ and substitute ‘‘section 

26 8501(7) of title 41’’; 

27 (B) in subsection (b)(2)(B), strike ‘‘handicapped, as defined in 

28 section 5(4) of such Act (41 U.S.C. 48b(4))’’ and substitute ‘‘dis29 abled, as defined in section 8501(6) of title 41’’; and 

30 (C) in subsection (b)(2)(C), strike ‘‘section 2(c) of such Act (41 

31 U.S.C. 47(c))’’ and substitute ‘‘section 8503(c) of title 41’’. 

32 (30) In section 2410g(d)(1), strike ‘‘section 4(12) of the Office of 

33 Federal Procurement Policy Act (41 U.S.C. 403(12)))’’ and substitute 

34 ‘‘section 103 of title 41)’’. 

35 (31) In section 2410i(b)(1), strike ‘‘section 4(11) of the Office of 

36 Federal Procurement Policy Act (41 U.S.C. 403(11)))’’ and substitute 

37 ‘‘section 134 of title 41)’’. 

38 (32) In section 2410m— 

39 (A) in subsection (a), before paragraph (1), strike ‘‘the Contract 

40 Disputes Act of 1978 (41 U.S.C. 601 et seq.)’’ and substitute 

41 ‘‘chapter 71 of title 41’’; 


hsrobinson on PROD1PC76 with BILLS
213 

HR 1107 RH 

1 (B) in subsection (a)(2), strike ‘‘section 7 of such Act (41 

2 U.S.C. 606)’’ and substitute ‘‘section 7104(a) of title 41’’; and 

3 (C) in subsection (b)(1)(A), strike ‘‘section 10(a) of the Con4 tract Disputes Act of 1978 (41 U.S.C. 609(a))’’ and substitute 

5 ‘‘section 7104(b) of title 41’’. 

6 (33) In section 2457(e), strike ‘‘section 2 of the Buy American Act 

7 (41 U.S.C. 10a)’’ and substitute ‘‘section 8302 of title 41’’. 

8 (34) In section 2461(c)(1), strike ‘‘section 2 of the Javits-Wagner9 O’Day Act (41 U.S.C. 47)’’ and substitute ‘‘section 8503 of title 41’’. 

10 (35) In section 2485(b)(1), strike ‘‘section 4(6) of the Office of Fed11 eral Procurement Policy Act (41 U.S.C. 403(6))’’ and substitute ‘‘sec12 tion 107 of title 41’’. 

13 (36) In the chapter analysis for subchapter V of chapter 148, in the 

14 item for section 2533, strike ‘‘the Buy American Act’’ and substitute 

15 ‘‘chapter 83 of title 41’’. 

16 (37) In section 2533— 

17 (A) in the section catchline, strike ‘‘the Buy American 

18 Act’’ and substitute ‘‘chapter 83 of title 41’’; and 

19 (B) in subsection (a), strike ‘‘section 2 of the Buy American Act 

20 (41 U.S.C. 10a)’’ and substitute ‘‘section 8302 of title 41’’. 

21 (38) In section 2533a(i), strike ‘‘section 34 of the Office of Federal 

22 Procurement Policy Act (41 U.S.C. 430)’’ and substitute ‘‘section 1906 

23 of title 41’’. 

24 (39) In section 2533b— 

25 (A) in subsection (h), strike ‘‘section 34 of the Office of Federal 

26 Procurement Policy Act (41 U.S.C. 430)’’ and substitute ‘‘section 

27 1906 of title 41’’; and 

28 (B) in subsection (j), strike ‘‘section 4 of the Office of Federal 

29 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 

30 105 of title 41’’. 

31 (40) In section 2534(g)(2), strike ‘‘section 33 of the Office of Fed32 eral Procurement Policy Act (41 U.S.C. 429)’’ and substitute ‘‘section 

33 1905 of title 41’’. 

34 (41) In section 2562(a)(1), strike ‘‘title III of the Federal Property 

35 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

36 substitute ‘‘division C of subtitle I of title 41’’. 

37 (42) In section 2576(a), strike ‘‘title III of the Federal Property and 

38 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub39 stitute ‘‘division C of subtitle I of title 41’’. 


hsrobinson on PROD1PC76 with BILLS
214 

HR 1107 RH 

1 (43) In section 2636(b)(3), strike ‘‘section 4(11) of the Office of 

2 Federal Procurement Policy Act (41 U.S.C. 403(11))’’ and substitute 

3 ‘‘section 134 of title 41’’. 

4 (44) In section 2667(f)(1), strike ‘‘Notwithstanding subsection (a)(3) 

5 or subtitle I of title 40 and title III of the Federal Property and Ad6 ministrative Services Act of 1949 (to the extent subtitle I and title III 

7 are inconsistent with this subsection)’’ and substitute ‘‘Notwithstanding 

8 subtitle I of title 40 and division C of subtitle I of title 41 (to the ex9 tent those provisions are inconsistent with this subsection) or sub10 section (a)(2) of this section’’. 

11 (45) In section 2664(a), strike ‘‘title III of the Federal Property and 

12 Administrative Services Act of 1949, as amended (41 U.S.C. 251 et 

13 seq.)’’ and substitute ‘‘division C of subtitle I of title 41’’. 

14 (46) In section 2691(b), strike ‘‘title III of the Federal Property and 

15 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub16 stitute ‘‘division C of subtitle I of title 41’’. 

17 (47) In section 2696(a), strike ‘‘title III of the Federal Property and 

18 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub19 stitute ‘‘division C of subtitle I of title 41’’. 

20 (48) In section 2836(g), strike ‘‘the Contract Disputes Act of 1978 

21 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 71 of title 41’’. 

22 (49) In section 2854a(d)(1), strike ‘‘title III of the Federal Property 

23 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

24 substitute ‘‘division C of subtitle I of title 41’’. 

25 (50) In section 2878(d)(2), strike ‘‘title III of the Federal Property 

26 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

27 substitute ‘‘division C of subtitle I of title 41’’. 

28 (51) In the chapter analysis for chapter 633, in the item for section 

29 7299, strike ‘‘Walsh-Healey Act’’ and substitute ‘‘chapter 65 of title 

30 41’’. 

31 (52) In section 7299— 

32 (A) in the heading, strike ‘‘Walsh-Healey Act’’ and substitute 

33 ‘‘chapter 65 of title 41’’; and 

34 (B) strike ‘‘the Walsh-Healey Act (41 U.S.C. 35 et seq.)’’ and 

35 substitute ‘‘chapter 65 of title 41’’. 

36 (53) In section 7305(d)— 

37 (A) strike ‘‘title III of the Federal Property and Administrative 

38 Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and substitute ‘‘di39 vision C of subtitle I of title 41’’; and 

40 (B) strike ‘‘under subtitle I of title 40 and such title III’’ and 

41 substitute ‘‘under those provisions’’. 


hsrobinson on PROD1PC76 with BILLS
215 

HR 1107 RH 

1 (54) In section 9444(b)(1), strike ‘‘title III of the Federal Property 

2 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

3 substitute ‘‘division C of subtitle I of title 41’’. 

4 (55) In section 9781(g), strike ‘‘title III of the Federal Property and 

5 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub6 stitute ‘‘division C of subtitle I of title 41’’. 

7 (c) TITLE 14.—Title 14, United States Code, is amended as follows: 

8 (1) In section 92(d), strike ‘‘title III of the Federal Property and 

9 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub10 stitute ‘‘division C of subtitle I of title 41’’. 

11 (2) In section 93(h), strike ‘‘title III of the Federal Property and 

12 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub13 stitute ‘‘division C of subtitle I of title 41’’. 

14 (3) In section 641(a), strike ‘‘title III of the Federal Property and 

15 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub16 stitute ‘‘division C of subtitle I of title 41’’. 

17 (4) In section 685(c)(1), strike ‘‘title III of the Federal Property and 

18 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub19 stitute ‘‘division C of subtitle I of title 41’’. 

20 (d) TITLE 18.—Title 18, United States Code, is amended as follows: 

21 (1) In section 3672, strike ‘‘section 3709 of the Revised Statutes of 

22 the United States’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

23 (2) In section 4124(c), strike ‘‘section 6(d)(4) of the Office of Fed24 eral Procurement Policy Act’’ and substitute ‘‘section 1122(a)(4) of 

25 title 41’’. 

26 (e) TITLE 23.—Title 23, United States Code, is amended as follows: 

27 (1) In section 140— 

28 (A) in subsection (b), strike ‘‘section 3709 of the Revised Stat29 utes, as amended (41 U.S.C. 5),’’ and substitute ‘‘section 6101(b) 

30 to (d) of title 41’’; and 

31 (B) in subsection (c)— 

32 (i) strike ‘‘section 3709 of the Revised Statutes, as amend33 ed (41 U.S.C. 5),’’ and substitute ‘‘section 6101(b) to (d) of 

34 title 41’’; and 

35 (ii) strike ‘‘section 302(e) of the Federal Property and Ad36 ministrative Services Act of 1949 (41 U.S.C. 252(e))’’ and 

37 substitute ‘‘section 3106 of title 41’’. 

38 (2) In section 502(c)(5), strike ‘‘Section 3709 of the Revised Stat39 utes (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

40 (f) THE INTERNAL REVENUE CODE OF 1986.—Section 7608(c)(1) of the 

41 Internal Revenue Code of 1986 (26 U.S.C. 7608(c)(1)) is amended— 


hsrobinson on PROD1PC76 with BILLS
216 

HR 1107 RH 

1 (1) in subparagraph (A)(i)(II), by striking ‘‘sections 11(a) and 22’’ 

2 and substituting ‘‘sections 6301(a) and (b)(1)–(3) and 6306’’; 

3 (2) in subparagraph (A)(i)(III), by striking ‘‘section 255’’ and sub4 stituting ‘‘chapter 45’’; and 

5 (3) in subparagraph (A)(i)(V), by striking ‘‘section 254(a) and (c)’’ 

6 and substituting ‘‘section 3901’’. 

7 (g) TITLE 28.—Title 28, United States Code, is amended as follows: 

8 (1) In the last sentence of section 524(c)(1), strike ‘‘section 3709 

9 of the Revised Statutes of the United States (41 U.S.C. 5), title III 

10 of the Federal Property and Administrative Services Act of 1949 (41 

11 U.S.C. 251 and following)’’ and substitute ‘‘division C (except sections 

12 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, 

13 section 6101(b) to (d) of title 41’’. 

14 (2) In section 604(a)(10)(C), strike ‘‘section 3709 of the Revised 

15 Statutes of the United States (41 U.S.C. 5)’’ and substitute ‘‘section 

16 6101(b) to (d) of title 41’’. 

17 (3) In section 624(3), strike ‘‘section 3709 of the Revised Statutes, 

18 as amended (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of 

19 title 41’’. 

20 (4) In section 753(g), strike ‘‘section 3709 of the Revised Statutes 

21 of the United States, as amended (41 U.S.C. 5)’’ and substitute ‘‘sec22 tion 6101(b) to (d) of title 41’’. 

23 (5) In section 1295— 

24 (A) in subsection (a)(10), strike ‘‘section 8(g)(1) of the Con25 tract Disputes Act of 1978 (41 U.S.C. 607(g)(1))’’ and substitute 

26 ‘‘section 7107(a)(1) of title 41’’; 

27 (B) in subsection (b), strike ‘‘section 10(b) of the Contract Dis28 putes Act of 1978 (41 U.S.C. 609(b))’’ and substitute ‘‘section 

29 7107(b) of title 41’’; and 

30 (C) in subsection (c), strike ‘‘section 10(b) of the Contract Dis31 putes Act of 1978’’ and substitute ‘‘section 7107(b) of title 41’’. 

32 (6) In section 1346(a)(2), strike ‘‘sections 8(g)(1) and 10(a)(1) of 

33 the Contract Disputes Act of 1978’’ and substitute ‘‘sections 

34 7104(b)(1) and 7107(a)(1) of title 41’’. 

35 (7) In section 1491(a)(2), strike ‘‘section 10(a)(1) of the Contract 

36 Disputes Act of 1978’’ and substitute ‘‘section 7104(b)(1) of title 41’’. 

37 (8) In section 2401(a), strike ‘‘the Contract Disputes Act of 1978’’ 

38 and substitute ‘‘chapter 71 of title 41’’. 

39 (9) In section 2412— 

40 (A) in subsection (d)(2)(E), strike ‘‘the Contract Disputes Act 

41 of 1978’’ and substitute ‘‘chapter 71 of title 41’’; and 


hsrobinson on PROD1PC76 with BILLS
217 

HR 1107 RH 

1 (B) in subsection (d)(3), strike ‘‘the Contract Disputes Act of 

2 1978’’ and substitute ‘‘chapter 71 of title 41’’. 

3 (10) In section 2414, strike ‘‘the Contract Disputes Act of 1978’’ 

4 and substitute ‘‘chapter 71 of title 41’’. 

5 (11) In section 2517(a), strike ‘‘the Contract Disputes Act of 1978’’ 

6 and substitute ‘‘chapter 71 of title 41’’. 

7 (h) TITLE 31.—Title 31, United States Code, is amended as follows: 

8 (1) In section 506, strike ‘‘section 5(a) of the Office of Federal Pro9 curement Policy Act (41 U.S.C. 404(a))’’ and substitute ‘‘section 

10 1101(a) of title 41’’. 

11 (2) In section 731(i)(7), strike ‘‘section 27 of the Office of Federal 

12 Procurement Policy Act (41 U.S.C. 423)’’ and substitute ‘‘chapter 21 

13 of title 41’’. 

14 (3) In section 781(c)(1), strike ‘‘section 3709 of the Revised Stat15 utes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

16 (4) Section 1344(h)(2)(A) is amended to read as follows: 

17 ‘‘(A) a department— 

18 ‘‘(i) including independent establishments, other agencies, 

19 and wholly owned Government corporations; but 

20 ‘‘(ii) not including the Senate, House of Representatives, or 

21 Architect of the Capitol, or the officers or employees there22 of;’’. 

23 (5) In section 3567, strike ‘‘section 4(1) of the Office of Federal 

24 Procurement Policy Act (41 U.S.C. 403(1))’’ and substitute ‘‘section 

25 133 of title 41’’. 

26 (6) In section 3718(b)(1)(A), strike ‘‘title III of the Federal Prop27 erty and Administrative Services Act of 1949 (41 U.S.C. 251 and fol28 lowing)’’ and substitute ‘‘division C of subtitle I of title 41’’. 

29 (7) In section 3902(a), strike ‘‘section 12 of the Contract Disputes 

30 Act of 1978 (41 U.S.C. 611)’’ and substitute ‘‘section 7109(a)(1) and 

31 (b) of title 41’’. 

32 (8) In section 3907— 

33 (A) in subsection (a), strike ‘‘section 6 of the Contract Disputes 

34 Act of 1978 (41 U.S.C. 605)’’ and substitute ‘‘section 7103 of 

35 title 41’’; 

36 (B) in subsection (b)(1)(A), strike ‘‘the Contract Disputes Act 

37 of 1978 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 71 of 

38 title 41’’; 

39 (C) in subsection (b)(2)— 


hsrobinson on PROD1PC76 with BILLS
218 

HR 1107 RH 

1 (i) strike ‘‘section 12 of the Contract Disputes Act of 1978 

2 (41 U.S.C. 611)’’ and substitute ‘‘section 7109(a)(1) and (b) 

3 of title 41’’; and 

4 (ii) in the second sentence, strike ‘‘section 12’’ and sub5 stitute ‘‘section 7109(a)(1) and (b)’’; and 

6 (D) in subsection (c), strike ‘‘the Contract Disputes Act of 1978 

7 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 71 of title 41’’. 

8 (9) In section 6202(c)(2), strike ‘‘section 6(d)(5) of the Office of 

9 Federal Procurement Policy Act (41 U.S.C. 405(d)(5))’’ and substitute 

10 ‘‘section 1122(a)(4) of title 41’’. 

11 (10) In section 9703(b)(3), as added by section 638(b)(1) of the Act 

12 of October 6, 1992 (Public Law 102–393, 106 Stat. 1779), strike ‘‘sec13 tion 3709 of the Revised Statutes of the United States (41 U.S.C. 5), 

14 title III of the Federal Property and Administrative Services Act of 

15 1949 (41 U.S.C. 251 et seq.)’’ and substitute ‘‘division C (except sec16 tions 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 

17 41, section 6101(b) to (d) of title 41’’. 

18 (i) TITLE 35.—Title 35, United States Code, is amended as follows: 

19 (1) In section 2(b)(4)(A), strike ‘‘title III of the Federal Property 

20 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

21 substitute ‘‘division C (except sections 3302, 3501(b), 3509, 3906, 

22 4710, and 4711) of subtitle I of title 41’’. 

23 (2) In section 203(b), strike ‘‘the Contract Disputes Act (41 U.S.C. 

24 § 601 et seq.)’’ and substitute ‘‘chapter 71 of title 41’’. 

25 (j) TITLE 38.—Title 38, United States Code, is amended as follows: 

26 (1) In section 1720(c)(2), strike ‘‘section 2(b)(1) of the Service Con27 tract Act of 1965 (41 U.S.C. 351(b)(1))’’ and substitute ‘‘section 

28 6704(a) of title 41’’. 

29 (2) In section 1966(a), strike ‘‘section 3709 of the Revised Statutes, 

30 as amended (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of 

31 title 41’’. 

32 (3) In section 3720(b), strike ‘‘title III of the Federal Property and 

33 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub34 stitute ‘‘division C (except sections 3302, 3501(b), 3509, 3906, 4710, 

35 and 4711) of subtitle I of title 41’’. 

36 (4) In section 7317(f), strike ‘‘section 3709 of the Revised Statutes 

37 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

38 (5) In section 7802(f), strike ‘‘section 3709 of the Revised Statutes 

39 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

40 (6) In section 8122— 


hsrobinson on PROD1PC76 with BILLS
219 

HR 1107 RH 

1 (A) in subsection (a)(1), strike ‘‘section 3709 of the Revised 

2 Statutes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of 

3 title 41’’; and 

4 (B) in subsection (c)— 

5 (i) strike ‘‘(41 U.S.C. 252(c))’’; and 

6 (ii) strike ‘‘section 304 of that Act (41 U.S.C. 254)’’ and 

7 substitute ‘‘sections 3901 and 3905 of title 41’’. 

8 (7) In section 8127— 

9 (A) in subsection (b), strike ‘‘section 4 of the Office of Federal 

10 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 

11 134 of title 41’’; and 

12 (B) in subsection (c)(2), strike ‘‘section 4 of the Office of Fed13 eral Procurement Policy Act (41 U.S.C. 403)’’ and substitute 

14 ‘‘section 134 of title 41’’. 

15 (8) In section 8153(a)— 

16 (A) in paragraph (3)(B)(ii), strike ‘‘section 22 of the Office of 

17 Federal Procurement Policy Act (41 U.S.C. 418b)’’ and substitute 

18 ‘‘section 1707 of title 41’’; and 

19 (B) in paragraph (3)(D), strike ‘‘section 303(f) of the Federal 

20 Property and Administrative Services Act of 1949 (41 U.S.C. 

21 253(f))’’ and substitute ‘‘section 3304(e) of title 41’’. 

22 (9) In section 8201(e), strike ‘‘section 3709 of the Revised Statutes 

23 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

24 (k) TITLE 39.—Section 410(b) of title 39, United States Code, is amend25 ed by striking paragraph (5) and substituting— 

26 ‘‘(5) chapters 65 and 67 of title 41;’’. 

27 (l) TITLE 40.—Title 40, United States Code, is amended as follows: 

28 (1) In the chapter analysis for chapter 1, in item 111, strike ‘‘Fed29 eral Property and Administrative Services Act of 1949’’ and substitute 

30 ‘‘division C of subtitle I of title 41’’. 

31 (2) In section 102, before paragraph (1), strike ‘‘title III of the Fed32 eral Property and Administrative Services Act of 1949 (41 U.S.C. 251 

33 et seq.)’’ and substitute ‘‘division C (except section 3302) of subtitle 

34 I of title 41’’. 

35 (3) In section 111— 

36 (A) in the section catchline, strike ‘‘Federal Property and 

37 Administrative Services Act of 1949’’ and substitute ‘‘di38 vision C of subtitle I of title 41’’; and 

39 (B) before paragraph (1), strike ‘‘title III of the Federal Prop40 erty and Administrative Services Act of 1949 (41 U.S.C. 251 et 


hsrobinson on PROD1PC76 with BILLS
220 

HR 1107 RH 

1 seq.)’’ and substitute ‘‘division C (except sections 3302, 3501(b), 

2 3509, 3906, 4710, and 4711) of subtitle I of title 41’’. 

3 (4) In section 113(b)— 

4 (A) in the heading, strike ‘‘THE OFFICE OF FEDERAL PRO5 CUREMENT POLICY ACT’’ and substitute ‘‘DIVISION B OF SUB6 TITLE I OF TITLE 41’’; and 

7 (B) strike ‘‘the Office of Federal Procurement Policy Act (41 

8 U.S.C. 401 et seq.)’’ and substitute ‘‘division B of subtitle I of 

9 title 41’’. 

10 (5) In section 311— 

11 (A) in subsection (a), strike ‘‘title III of the Federal Property 

12 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

13 and substitute ‘‘division C of subtitle I of title 41’’; and 

14 (B) in subsection (b), strike ‘‘title III of the Federal Property 

15 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

16 and substitute ‘‘division C of subtitle I of title 41’’. 

17 (6) In section 501(b)(2)(B), strike ‘‘the Office of Federal Procure18 ment Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘division B 

19 of subtitle I of title 41’’. 

20 (7) In section 502— 

21 (A) in subsection (b)(1)(A)(i), strike ‘‘section 5(3) of the Javits22 Wagner-O’Day Act (41 U.S.C. 48b(3))’’ and substitute ‘‘section 

23 8501(7) of title 41’’; 

24 (B) in subsection (b)(1)(A)(ii), strike ‘‘handicapped (as defined 

25 in section 5(4) of the Javits-Wagner-O’Day Act (41 U.S.C. 

26 48b(4)))’’ and substitute ‘‘disabled (as defined in section 8501(6) 

27 of title 41)’’; 

28 (C) in subsection (b)(1)(B), strike ‘‘the Javits-Wagner-O’Day 

29 Act (41 U.S.C. 46 et seq.)’’ and substitute ‘‘chapter 85 of title 

30 41’’; and 

31 (D) in subsection (b)(2), strike ‘‘section 2 of the Javits-Wagner32 O’Day Act (41 U.S.C. 47)’’ and substitute ‘‘section 8503 of title 

33 41’’. 

34 (8) In section 503(b)— 

35 (A) in paragraph (1), strike ‘‘the Office of Federal Procurement 

36 Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘division B of 

37 subtitle I of title 41’’; and 

38 (B) in paragraph (3)— 

39 (i) in the heading, strike ‘‘SECTION 3709 OF REVISED STAT40 UTES’’ and substitute ‘‘SECTION 6101(b) TO (d) OF TITLE 41’’; 

41 and 


hsrobinson on PROD1PC76 with BILLS
221 

HR 1107 RH 

1 (ii) strike ‘‘Section 3709 of the Revised Statutes (41 

2 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 

3 41’’. 

4 (9) In section 506(a)(1)(D), strike ‘‘the Office of Federal Procure5 ment Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘division B 

6 of subtitle I of title 41’’. 

7 (10) In section 545(f), strike ‘‘Section 3709 of the Revised Statutes 

8 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b)–(d) of title 41’’. 

9 (11) In section 593(a)(2), strike ‘‘the Javits-Wagner-O’Day Act (41 

10 U.S.C. 46 et seq.)’’ and substitute ‘‘chapter 85 of title 41’’. 

11 (12) In section 1305, strike ‘‘title III of the Federal Property and 

12 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub13 stitute ‘‘division C of subtitle I of title 41’’. 

14 (13) In section 1308, strike ‘‘title III of the Federal Property and 

15 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub16 stitute ‘‘division C of subtitle I of title 41’’. 

17 (14) In section 3148, strike ‘‘section 3709 of the Revised Statutes 

18 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

19 (15) In section 3304(d)(2), strike ‘‘title III of the Federal Property 

20 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

21 substitute ‘‘division C (except sections 3302, 3501(b), 3509, 3906, 

22 4710, and 4711) of subtitle I of title 41’’. 

23 (16) In section 3305(a)— 

24 (A) in paragraph (1), strike ‘‘title III of the Federal Property 

25 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

26 and substitute ‘‘division C of subtitle I of title 41’’; and 

27 (B) in paragraph (2), strike ‘‘title III of the Federal Property 

28 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

29 and substitute ‘‘division C of subtitle I of title 41’’. 

30 (17) In section 3308(a), strike ‘‘section 3709 of the Revised Statutes 

31 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

32 (18) In section 3310(2), strike ‘‘section 303 of the Federal Property 

33 and Administrative Services Act of 1949 (41 U.S.C. 253)’’ and sub34 stitute ‘‘sections 3105, 3301, and 3303 to 3305 of title 41’’. 

35 (19) In section 3701(b)(3)(A)(ii), strike ‘‘the Walsh-Healey Act (41 

36 U.S.C. 35 et seq.)’’ and substitute ‘‘chapter 65 of title 41’’. 

37 (20) In section 3704(b)(1), strike ‘‘sections 4 and 5 of the Walsh38 Healey Act (41 U.S.C. 38, 39)’’ and substitute ‘‘sections 6506 and 

39 6507 of title 41’’. 


hsrobinson on PROD1PC76 with BILLS
222 

HR 1107 RH 

1 (21) In section 3707, strike ‘‘section 4 of the Office of Federal Pro2 curement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 103 of 

3 title 41’’. 

4 (22) In section 6111(b)(2)(D), strike ‘‘section 3709 of the Revised 

5 Statutes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 

6 41’’. 

7 (23) In section 8711(d), strike ‘‘section 3709 of the Revised Statutes 

8 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

9 (24) In section 11101— 

10 (A) in paragraph (1), strike ‘‘section 4 of the Office of Federal 

11 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 

12 103 of title 41’’; and 

13 (B) in paragraph (2), strike ‘‘section 4 of the Act (41 U.S.C. 

14 403)’’ and substitute ‘‘section 133 of title 41’’. 

15 (m) TITLE 44.—Title 44, United States Code, is amended as follows: 

16 (1) In the chapter analysis for chapter 3, in the item for section 311, 

17 strike ‘‘the Federal Property and Administrative Services Act’’ and 

18 substitute ‘‘subtitle I of title 40 and division C of subtitle I of title 41’’. 

19 (2) In section 311— 

20 (A) in the section catchline, strike ‘‘the Federal Property 

21 and Administrative Services Act’’ and substitute ‘‘sub22 title I of title 40 and division C of subtitle I of title 

23 41’’; 

24 (B) in subsection (a), strike ‘‘title III of the Federal Property 

25 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

26 and substitute ‘‘division C (except sections 3302, 3501(b), 3509, 

27 3906, 4710, and 4711) of subtitle I of title 41’’; and 

28 (C) in subsection (c), strike ‘‘section 3709 of the Revised Stat29 utes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 

30 41’’. 

31 (n) TITLE 46.—Section 51703(b)(2) of title 46, United States Code, is 

32 amended by striking ‘‘section 3709 of the Revised Statutes (41 U.S.C. 5)’’ 

33 and substituting ‘‘section 6101(b) to (d) of title 41’’. 

34 (o) TITLE 49.—Title 49, United States Code, is amended as follows: 

35 (1) In section 103(e), strike ‘‘title III of the Federal Property and 

36 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub37 stitute ‘‘division C of subtitle I of title 41’’. 

38 (2) In section 1113(b)(1)(B) strike ‘‘section 3709 of the Revised 

39 Statutes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 

40 41’’. 


hsrobinson on PROD1PC76 with BILLS
223 

HR 1107 RH 

1 (3) In section 5334(j)(2), strike ‘‘Section 3709 of the Revised Stat2 utes (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

3 (4) In section 10721, strike ‘‘Section 3709 of the Revised Statutes 

4 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

5 (5) In section 13712, strike ‘‘Section 3709 of the Revised Statutes 

6 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

7 (6) In section 15504, strike ‘‘Section 3709 of the Revised Statutes 

8 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

9 (7) In section 40110— 

10 (A) in subsection (d)(2)(A), strike ‘‘Title III of the Federal 

11 Property and Administrative Services Act of 1949 (41 U.S.C. 

12 252–266)’’ and substitute ‘‘Division C (except sections 3302, 

13 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41’’; 

14 (B) in subsection (d)(2)(B), strike ‘‘The Office of Federal Pro15 curement Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘Di16 vision B (except sections 1704 and 2303) of subtitle I of title 41’’; 

17 (C) in subsection (d)(2)(C), strike ‘‘, except for section 315 (41 

18 U.S.C. 265). For the purpose of applying section 315 of that Act 

19 to the system,’’ and substitute ‘‘. However, section 4705 of title 

20 41 shall apply to the new acquisition management system devel21 oped and implemented pursuant to paragraph (1). For the purpose 

22 of applying section 4705 of title 41 to the system,’’; and 

23 (D) in subsection (d)(3)— 

24 (i) in the heading, strike ‘‘THE OFFICE OF FEDERAL PRO25 CUREMENT POLICY ACT’’ and substitute ‘‘DIVISION B OF SUB26 TITLE I OF TITLE 41’’; 

27 (ii) before subparagraph (A), strike ‘‘section 27 of the Of28 fice of Federal Procurement Policy Act (41 U.S.C. 423)’’ and 

29 substitute ‘‘chapter 21 of title 41’’; and 

30 (iii) in subparagraph (A), strike ‘‘Subsections (f) and (g)’’ 

31 and substitute ‘‘Sections 2101 and 2106 of title 41’’. 

32 (8) In section 40118(f)(2), strike ‘‘section 4(12) of the Office of 

33 Federal Procurement Policy Act (41 U.S.C. 403(12))’’ and substitute 

34 ‘‘section 103 of title 41’’. 

35 (9) In section 47305(d), strike ‘‘Section 3709 of the Revised Stat36 utes (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

37 SEC. 6. TRANSITIONAL AND SAVINGS PROVISIONS. 

38 (a) CUTOFF DATE.—This Act replaces certain provisions of law enacted 

39 on or before December 31, 2008. If a law enacted after that date amends 

40 or repeals a provision replaced by this Act, that law is deemed to amend 

41 or repeal, as the case may be, the corresponding provision enacted by this 


hsrobinson on PROD1PC76 with BILLS
224 

HR 1107 RH 

1 Act. If a law enacted after that date is otherwise inconsistent with this Act, 

2 it supersedes this Act to the extent of the inconsistency. 

3 (b) ORIGINAL DATE OF ENACTMENT UNCHANGED.—For purposes of de4 termining whether one provision of law supersedes another based on enact5 ment later in time, the date of enactment of a provision enacted by this Act 

6 is deemed to be the date of enactment of the provision it replaced. 

7 (c) REFERENCES TO PROVISIONS REPLACED.—A reference to a provision 

8 of law replaced by this Act, including a reference in a regulation, order, or 

9 other law, is deemed to refer to the corresponding provision enacted by this 

10 Act. 

11 (d) REGULATIONS, ORDERS, AND OTHER ADMINISTRATIVE ACTIONS.—A 

12 regulation, order, or other administrative action in effect under a provision 

13 of law replaced by this Act continues in effect under the corresponding pro14 vision enacted by this Act. 

15 (e) ACTIONS TAKEN AND OFFENSES COMMITTED.—An action taken or 

16 an offense committed under a provision of law replaced by this Act is 

17 deemed to have been taken or committed under the corresponding provision 

18 enacted by this Act. 

19 (f) EFFECTIVE DATES FOR CERTAIN ACTIONS.— 

20 (1) ISSUE POLICY.—The requirement in section 2303(b)(1) of title 

21 41, United States Code, to issue a policy shall be done not later than 

22 270 days after October 14, 2008. 

23 (2) REVISIONS IN FEDERAL PROCUREMENT DATA SYSTEM OR SUC24 CESSOR SYSTEM.—The requirement in section 2311 of title 41, United 

25 States Code, to direct appropriate revisions in the Federal Procurement 

26 Data System or any successor system shall be done not later than one 

27 year after October 14, 2008. 

28 (3) ESTABLISH DATABASE.—The requirement in section 2313(a) of 

29 title 41, United States Code, to establish a database shall be done not 

30 later than one year after October 14, 2008. 

31 (4) AMEND FEDERAL ACQUISITION REGULATION WITHIN ONE YEAR

32 AFTER OCTOBER 14, 2008.—The Federal Acquisition Regulation shall be 

33 amended to meet the requirements of sections 2313(f), 3302(b) and 

34 (d), 4710(b), and 4711(b) of title 41, United States Code, not later 

35 than one year after October 14, 2008. 

36 (5) AMEND FEDERAL ACQUISITION REGULATION WITHIN 270 DAYS

37 AFTER OCTOBER 14, 2008.—The Federal Acquisition Regulation shall be 

38 amended to meet the requirements of section 3906(b) of title 41, 

39 United States Code, not later than 270 days after October 14, 2008. 


hsrobinson on PROD1PC76 with BILLS
225 

HR 1107 RH 

1 SEC. 7. REPEALS. 

2 (a) INFERENCE OF REPEAL.—The repeal of a law by this Act may not 

3 be construed as a legislative inference that the provision was or was not in 

4 effect before its repeal. 

5 (b) REPEALER SCHEDULE.—The laws specified in the following schedule 

6 are repealed, except for rights and duties that matured, penalties that were 

7 incurred, and proceedings that were begun before the date of enactment of 

8 this Act. 


hsrobinson on PROD1PC76 with BILLS
226 

HR 1107 RH 

Schedule of Laws Repealed 

Statutes at Large 

Date Chapter or Public Law Section 

Statutes at Large U.S. Code (title 41 unless otherwise specified) 

Volume Page Existing Proposed 

1875 

Mar. 3 ...................... 133 .................................... 2 ...................................................................................................................................... 18 455 ......................................... 10 ........................

1884 

July 7 ...................... 332 .................................... (words after ‘‘fifty five thousand dollars’’ in 3d par. under heading ‘‘Miscellaneous 

Objects Under the Treasury Department’’).

23 204 ......................................... 24 6308 

1920 

June 5 ..................... 240 .................................... (last par. under heading ‘‘Purchase of Articles Manufactured at Government Arsenals’’). 41 975 ......................................... 23 6307 

1921 

June 30 ................... 33 ...................................... 1 (last proviso on p. 78) ................................................................................................. 42 78 ........................................... 11a 6302 

1922 

July 1 ...................... 259 .................................... (1st proviso on p. 812) ................................................................................................... 42 812 ......................................... 23 6307 

1926 

May 13 .................... 294 .................................... (4th complete par. (related to R.S. § 3741) on p. 547) ................................................. 44 547 ......................................... 16c ........................

1927 

Jan. 12 .................... 27 ...................................... (2d complete par. (related to R.S. § 3741) on p. 936) .................................................. 44 936 ......................................... 16a ........................

1933 

Mar. 3 ...................... 212 .................................... title III, § 1 ..................................................................................................................... 47 1520 ....................................... 10c 8301 

........................................ title III, § 2 ..................................................................................................................... 47 1520 ....................................... 10a 8302 ........................................ title III, § 3 ..................................................................................................................... 47 1520 ....................................... 10b 8303 ........................................ title III, § 4 ..................................................................................................................... ........ ................................................ 10b–1 ........................

June 16 ................... 101 .................................... 5 ...................................................................................................................................... 48 305 ......................................... 24a ........................

1934 

Jan. 25 .................... 5 ........................................ (related to R.S. § 3741) .................................................................................................. 48 337 ......................................... 22 6306 June 16 ................... 553 .................................... 1–6 .................................................................................................................................. 48 974 ......................................... 28–33 ........................


hsrobinson on PROD1PC76 with BILLS
227 

HR 1107 RH 

1935 

Aug. 29 .................... 815 .................................... ......................................................................................................................................... 49 990 ......................................... 34 ........................

1936 

June 30 ................... 881 .................................... 1 (matter before subsec. (a) less words related to definition of ‘‘agency of the United 

States’’).

49 2036 ....................................... 35 6502 

........................................ 1 (matter before subsec. (a) related to definition of ‘‘agency of the United States’’) ... 49 2036 ....................................... 35 6501 ........................................ 1(a)–(d) .......................................................................................................................... 49 2036 ....................................... 35 6502 ........................................ 2 ...................................................................................................................................... 49 2037 ....................................... 36 6503 ........................................ 3 ...................................................................................................................................... 49 2037 ....................................... 37 6504 ........................................ 4 ...................................................................................................................................... 49 2038 ....................................... 38 6506 ........................................ 5 ...................................................................................................................................... 49 2038 ....................................... 39 6507 ........................................ 6 ...................................................................................................................................... 49 2038 ....................................... 40 6508 ........................................ 7 ...................................................................................................................................... 49 2039 ....................................... 41 6501 ........................................ 8 ...................................................................................................................................... 49 2039 ....................................... 42 6511 ........................................ 9 ...................................................................................................................................... 49 2039 ....................................... 43 6505 ........................................ 10(a) ............................................................................................................................... ........ ................................................ 43a 6509 ........................................ 10(b) (1st sentence) ....................................................................................................... ........ ................................................ 43a 6507 ........................................ 10(b) (last sentence), (c) ................................................................................................ ........ ................................................ 43a 6509 ........................................ 11 .................................................................................................................................... ........ ................................................ 43b 6510 ........................................ 12 .................................................................................................................................... 49 2039 ....................................... 44 ................................................................ 13 .................................................................................................................................... 49 2039 ....................................... 45 6502 

1938 

June 25 ................... 697 .................................... 1 ...................................................................................................................................... 52 1196 ....................................... 46 8502 

........................................ 2 ...................................................................................................................................... 52 1196 ....................................... 47 8503 ........................................ 3 ...................................................................................................................................... 52 1196 ....................................... 48 8504 ........................................ 4 ...................................................................................................................................... 52 1196 ....................................... 48a 8505 ........................................ 5 ...................................................................................................................................... 52 1196 ....................................... 48b 8501 ........................................ 6 ...................................................................................................................................... 52 1196 ....................................... 48c 8506 ........................................ 7 ...................................................................................................................................... ........ ................................................ 46 note ........................

1939 

Aug. 4 ...................... 418 .................................... 13 (related to R.S. § 3744) ............................................................................................ 53 1197 ....................................... 16d ........................

1940 

June 18 ................... 396 .................................... (last par. (related to R.S. § 3709) under heading ‘‘Botanic Garden’’) .......................... 54 474 ......................................... 6kk ........................

........................................ (last par. (related to R.S. § 3744) under heading ‘‘Botanic Garden’’) .......................... 54 474 ......................................... 16b ........................

June 24 ................... 412 .................................... ......................................................................................................................................... 54 504 ......................................... 6b 6102 Oct. 10 .................... 851 .................................... 2(a) ................................................................................................................................. 54 1110 ....................................... 6a 6102 

........................................ 2(f) .................................................................................................................................. 54 1110 ....................................... 6a 6102 ........................................ 2(h) ................................................................................................................................. 54 1110 ....................................... 6a 6102 ........................................ 2(j) .................................................................................................................................. 54 1110 ....................................... 6a 6102 ........................................ 3(a) ................................................................................................................................. 54 1111 ....................................... 6b ................................................................ 3(b) ................................................................................................................................. 54 1111 ....................................... 6b ........................


hsrobinson on PROD1PC76 with BILLS
228 

HR 1107 RH 

Schedule of Laws Repealed—Continued 

Statutes at Large 

Date Chapter or Public Law Section 

Statutes at Large U.S. Code (title 41 unless otherwise specified) 

Volume Page Existing Proposed 

1942 

June 22 ................... 432 .................................... 1 ...................................................................................................................................... 56 375 ......................................... 49 6309

........................................ 2 ...................................................................................................................................... 56 376 ......................................... 50 6309 

July 2 ...................... 472 .................................... (1st complete par. on p. 493) ......................................................................................... 56 493 ......................................... 6 ........................

1944 

July 1 ...................... 358 .................................... 1, 2(a) ............................................................................................................................. 58 649 ......................................... 101, 102 ........................

........................................ 3 ...................................................................................................................................... 58 650 ......................................... 103 ................................................................ 4(b)–13(c) ....................................................................................................................... 58 651 ......................................... 104–113 ................................................................ 13(d) ............................................................................................................................... 58 662 ......................................... 113 ................................................................ 13(e)–15 ......................................................................................................................... 58 662 ......................................... 113–115 ................................................................ 17, 18(a) ......................................................................................................................... 58 665 ......................................... 117, 118 ................................................................ 18(c)–(e) ......................................................................................................................... 58 666 ......................................... 118 ................................................................ 19(c) ............................................................................................................................... 58 667 ......................................... 119 ................................................................ 20–25 .............................................................................................................................. 58 668 ......................................... 120–125 ................................................................ 26 .................................................................................................................................... 58 671 ......................................... 101 note ................................................................ 27 .................................................................................................................................... 58 671 ......................................... 101 note ........................

1946 

Mar. 8 ...................... 80 ...................................... 1 ...................................................................................................................................... 60 37 ........................................... 51 ........................

........................................ 2 ...................................................................................................................................... 60 37 ........................................... 52 8701 ........................................ 3 ...................................................................................................................................... 60 37 ........................................... 53 8702 ........................................ 4 ...................................................................................................................................... 60 37 ........................................... 54 8707 ........................................ 5 ...................................................................................................................................... 60 37 ........................................... 55 8706 ........................................ 6 ...................................................................................................................................... 60 37 ........................................... 56 8705 ........................................ 7 ...................................................................................................................................... 60 37 ........................................... 57 8703 ........................................ 8 ...................................................................................................................................... 60 37 ........................................... 58 8704 

Aug. 2 ...................... 744 .................................... 9(c) ................................................................................................................................. 60 809 ......................................... 5 6101 

........................................ 18 .................................................................................................................................... 60 811 ......................................... 5a 6101 

1949 

June 30 ................... 288 .................................... 301 .................................................................................................................................. 63 393 ......................................... 251 ........................

........................................ 302(a) ............................................................................................................................. 63 393 ......................................... 252 3101 ........................................ 302(b) ............................................................................................................................. 63 393 ......................................... 252 3104 


hsrobinson on PROD1PC76 with BILLS
229 

HR 1107 RH 

........................................ 302(c)(1) ......................................................................................................................... 63 393 ......................................... 252 3106 ........................................ 302(c)(2) ......................................................................................................................... ........ ................................................ 252 3301 ........................................ 302A, 302B .................................................................................................................... ........ ................................................ 252a, 252b 3101 ........................................ 302C ............................................................................................................................... ........ ................................................ 252c 4709 ........................................ 303(a) ............................................................................................................................. 63 395 ......................................... 253 3301 ........................................ 303(b) ............................................................................................................................. 63 395 ......................................... 253 3303 ........................................ 303(c)–(f) ....................................................................................................................... 63 395 ......................................... 253 3304 ........................................ 303(g) ............................................................................................................................. 63 395 ......................................... 253 3305 ........................................ 303(h) ............................................................................................................................. ........ ................................................ 253 3301 ........................................ 303(i) .............................................................................................................................. ........ ................................................ 253 3105 ........................................ 303(j) .............................................................................................................................. ........ ................................................ 253 3304 ........................................ 303A ............................................................................................................................... ........ ................................................ 253a 3306 ........................................ 303B(a), (b) ................................................................................................................... ........ ................................................ 253b 3701 ........................................ 303B(c) ........................................................................................................................... ........ ................................................ 253b 3702 ........................................ 303B(d) .......................................................................................................................... ........ ................................................ 253b 3703 ........................................ 303B(e) ........................................................................................................................... ........ ................................................ 253b 3704 ........................................ 303B(f) ........................................................................................................................... ........ ................................................ 253b 3705 ........................................ 303B(g) .......................................................................................................................... ........ ................................................ 253b 3704, 3705 ........................................ 303B(h) .......................................................................................................................... ........ ................................................ 253b 3706 ........................................ 303B(i) ........................................................................................................................... ........ ................................................ 253b 3707 ........................................ 303B(j) ........................................................................................................................... ........ ................................................ 253b 3308 ........................................ 303B(k), (l) .................................................................................................................... ........ ................................................ 253b 3708 ........................................ 303B(m) ......................................................................................................................... ........ ................................................ 253b 4702 ........................................ 303C ............................................................................................................................... ........ ................................................ 253c 3311 ........................................ 303D ............................................................................................................................... ........ ................................................ 253d 4703 ........................................ 303F ............................................................................................................................... ........ ................................................ 253f 3310 ........................................ 303G ............................................................................................................................... ........ ................................................ 253g 4704 ........................................ 303H ............................................................................................................................... ........ ................................................ 253h 4103 ........................................ 303I ................................................................................................................................ ........ ................................................ 253i 4105 ........................................ 303J ................................................................................................................................ ........ ................................................ 253j 4106 ........................................ 303K ............................................................................................................................... ........ ................................................ 253k 4101 ........................................ 303L ............................................................................................................................... ........ ................................................ 253l 3902 ........................................ 303M ............................................................................................................................... ........ ................................................ 253m 3309 ........................................ 304(a) ............................................................................................................................. 63 395 ......................................... 254 3901 ........................................ 304(b) ............................................................................................................................. 63 395 ......................................... 254 3905 ........................................ 304A(a) ........................................................................................................................... ........ ................................................ 254b 3502 ........................................ 304A(b) ........................................................................................................................... ........ ................................................ 254b 3503 ........................................ 304A(c) ........................................................................................................................... ........ ................................................ 254b 3504 ........................................ 304A(d) .......................................................................................................................... ........ ................................................ 254b 3505 ........................................ 304A(e) ........................................................................................................................... ........ ................................................ 254b 3506 ........................................ 304A(f) ........................................................................................................................... ........ ................................................ 254b 3507 ........................................ 304A(g) ........................................................................................................................... ........ ................................................ 254b 3508 ........................................ 304A(h) .......................................................................................................................... ........ ................................................ 254b 3501 ........................................ 304B ............................................................................................................................... ........ ................................................ 254c 3903 ........................................ 304C ............................................................................................................................... ........ ................................................ 254d 4706 ........................................ 305(a) ............................................................................................................................. 63 396 ......................................... 255 4501 


hsrobinson on PROD1PC76 with BILLS
230 

HR 1107 RH 

Schedule of Laws Repealed—Continued 

Statutes at Large 

Date Chapter or Public Law Section 

Statutes at Large U.S. Code (title 41 unless otherwise specified) 

Volume Page Existing Proposed 

........................................ 305(b) ............................................................................................................................. ........ ................................................ 255 4502 ........................................ 305(c) ............................................................................................................................. 63 396 ......................................... 255 4502 ........................................ 305(d) ............................................................................................................................. 63 396 ......................................... 255 4503 ........................................ 305(e) ............................................................................................................................. ........ ................................................ 255 4504 ........................................ 305(f) .............................................................................................................................. ........ ................................................ 255 4505 ........................................ 305(g) ............................................................................................................................. ........ ................................................ 255 4506 ........................................ 306(a)–(d) ...................................................................................................................... ........ ................................................ 256 4303 ........................................ 306(e) ............................................................................................................................. ........ ................................................ 256 4304 ........................................ 306(f) .............................................................................................................................. ........ ................................................ 256 4305 ........................................ 306(g) ............................................................................................................................. ........ ................................................ 256 4306 ........................................ 306(h) ............................................................................................................................. ........ ................................................ 256 4307 ........................................ 306(i) .............................................................................................................................. ........ ................................................ 256 4308 ........................................ 306(j) .............................................................................................................................. ........ ................................................ 256 4309 ........................................ 306(k) ............................................................................................................................. ........ ................................................ 256 4310 ........................................ 306(l)(1) ......................................................................................................................... ........ ................................................ 256 4301 ........................................ 306(l)(2) ......................................................................................................................... ........ ................................................ 256 4302 ........................................ 306(m) ............................................................................................................................ ........ ................................................ 256 4301 ........................................ 307 .................................................................................................................................. 63 396 ......................................... 257 4701 ........................................ 309(a) ............................................................................................................................. 63 397 ......................................... 259 151 ........................................ 309(b) ............................................................................................................................. ........ ................................................ 259 152 ........................................ 309(c)(1) ......................................................................................................................... ........ ................................................ 259 111 ........................................ 309(c)(2) ......................................................................................................................... ........ ................................................ 259 112 ........................................ 309(c)(3) ......................................................................................................................... ........ ................................................ 259 114 ........................................ 309(c)(4) ......................................................................................................................... ........ ................................................ 259 107 ........................................ 309(c)(5) ......................................................................................................................... ........ ................................................ 259 113 ........................................ 309(c)(6) ......................................................................................................................... ........ ................................................ 259 116 ........................................ 309(c)(7) ......................................................................................................................... ........ ................................................ 259 109 ........................................ 309(c)(8), (9) .................................................................................................................. ........ ................................................ 259 108 ........................................ 309(c)(10) ....................................................................................................................... ........ ................................................ 259 115 ........................................ 309(c)(11) ....................................................................................................................... ........ ................................................ 259 103 ........................................ 309(c)(12) ....................................................................................................................... ........ ................................................ 259 110 ........................................ 309(c)(13) ....................................................................................................................... ........ ................................................ 259 102 ........................................ 309(c)(14) ....................................................................................................................... ........ ................................................ 259 105 ........................................ 309(d) ............................................................................................................................. ........ ................................................ 259 153 ........................................ 309(e) ............................................................................................................................. ........ ................................................ 259 106 


hsrobinson on PROD1PC76 with BILLS
231 

HR 1107 RH 

........................................ 310 .................................................................................................................................. 63 397 ......................................... 260 3101 ........................................ 311 .................................................................................................................................. ........ ................................................ 261 3102 ........................................ 312 .................................................................................................................................. ........ ................................................ 262 4701 ........................................ 313 .................................................................................................................................. ........ ................................................ 263 3103 ........................................ 314 .................................................................................................................................. ........ ................................................ 264 3307 ........................................ 314A (‘‘commercial item’’) ............................................................................................. ........ ................................................ 264a (‘‘commercial 

item’’) 

103 

........................................ 314A (‘‘nondevelopmental item’’) ................................................................................... ........ ................................................ 264a 

(‘‘nondevelopmental 

item’’) 

110 

........................................ 314A (‘‘component’’) ...................................................................................................... ........ ................................................ 264a (‘‘component’’) 105 ........................................ 314A (‘‘commercial component’’) ................................................................................... ........ ................................................ 264a (‘‘commercial 

component’’) 

102 

........................................ 314B ............................................................................................................................... ........ ................................................ 264b 3307 ........................................ 315 .................................................................................................................................. ........ ................................................ 265 4705 ........................................ 316 .................................................................................................................................. ........ ................................................ 266 3105 

Oct. 29 .................... 787 .................................... 633 .................................................................................................................................. 63 1024 ....................................... 10d 8303 

1950 

Sept. 5 ..................... 849 .................................... 10(a) ............................................................................................................................... 64 591 ......................................... 256a 4707 

1952 

July 14 .................... 739 .................................... ......................................................................................................................................... 66 627 ......................................... 113, 113 note ........................

1954 

May 11 .................... 199 .................................... 1 ...................................................................................................................................... 68 81 ........................................... 321 ........................

........................................ 2 ...................................................................................................................................... 68 81 ........................................... 322 ........................

1957 

July 1 ...................... 85–75 ................................ (last par. on p. 251) ....................................................................................................... 71 251 ......................................... 6a ........................

1961 

Aug. 3 ...................... 87–125 .............................. 301 .................................................................................................................................. 75 279 ......................................... 6b ........................

1962 

Sept. 5 ..................... 87–638 .............................. ......................................................................................................................................... 76 437 ......................................... 254a 4708 

1965 

July 27 .................... 89–90 ................................ (2d par. on p. 276) ......................................................................................................... 79 276 ......................................... 6a–1 6102 Oct. 22 .................... 89–286 .............................. 1 ...................................................................................................................................... 79 1034 ....................................... 351 note ........................

........................................ 2(a) (words before par. (1) related to applicability) ...................................................... 79 1034 ....................................... 351 6702 ........................................ 2(a) (words before par. (1) related to required contract terms), (1)–(5) ...................... 79 1034 ....................................... 351 6703 ........................................ 2(b) ................................................................................................................................. 79 1034 ....................................... 351 6704 ........................................ 3 ...................................................................................................................................... 79 1035 ....................................... 352 6705 ........................................ 4 ...................................................................................................................................... 79 1035 ....................................... 353 6707 ........................................ 5(a) ................................................................................................................................. 79 1035 ....................................... 354 6706 


hsrobinson on PROD1PC76 with BILLS
232 

HR 1107 RH 

Schedule of Laws Repealed—Continued 

Statutes at Large 

Date Chapter or Public Law Section 

Statutes at Large U.S. Code (title 41 unless otherwise specified) 

Volume Page Existing Proposed 

........................................ 5(b) ................................................................................................................................. 79 1035 ....................................... 354 6705 ........................................ 6 ...................................................................................................................................... 79 1035 ....................................... 355 6707 ........................................ 7 ...................................................................................................................................... 79 1035 ....................................... 356 6702 ........................................ 8 ...................................................................................................................................... 79 1036 ....................................... 357 6701 ........................................ 9 ...................................................................................................................................... 79 1036 ....................................... 351 note ................................................................ 10 .................................................................................................................................... ........ ................................................ 358 6707 

1974 

Aug. 30 .................... 93–400 .............................. 4(1) ................................................................................................................................. 88 797 ......................................... 403 133 

........................................ 4(2) ................................................................................................................................. 88 797 ......................................... 403 111 ........................................ 4(3) ................................................................................................................................. 88 797 ......................................... 403 112 ........................................ 4(4) ................................................................................................................................. 88 797 ......................................... 403 114 ........................................ 4(5) ................................................................................................................................. ........ ................................................ 403 132 ........................................ 4(6) ................................................................................................................................. ........ ................................................ 403 107 ........................................ 4(7) ................................................................................................................................. ........ ................................................ 403 113 ........................................ 4(8) ................................................................................................................................. ........ ................................................ 403 116 ........................................ 4(9) ................................................................................................................................. ........ ................................................ 403 109 ........................................ 4(10) (‘‘item’’, ‘‘item of supply’’) ................................................................................... ........ ................................................ 403 108 ........................................ 4(10) (‘‘supplies’’) .......................................................................................................... ........ ................................................ 403 115 ........................................ 4(11) ............................................................................................................................... ........ ................................................ 403 134 ........................................ 4(12) ............................................................................................................................... ........ ................................................ 403 103 ........................................ 4(13) ............................................................................................................................... ........ ................................................ 403 110 ........................................ 4(14) ............................................................................................................................... ........ ................................................ 403 105 ........................................ 4(15) ............................................................................................................................... ........ ................................................ 403 102 ........................................ 4(16) ............................................................................................................................... ........ ................................................ 403 131 ........................................ 4(17) ............................................................................................................................... ........ ................................................ 403 1301 ........................................ 5(a) ................................................................................................................................. 88 797 ......................................... 404 1101 ........................................ 5(b) ................................................................................................................................. 88 797 ......................................... 404 1102 ........................................ 6(a)–(c) ........................................................................................................................... 88 797 ......................................... 405 1121 ........................................ 6(d), (e) .......................................................................................................................... 88 797 ......................................... 405 1122 ........................................ 6(f) .................................................................................................................................. 88 797 ......................................... 405 1121 ........................................ 6(g) ................................................................................................................................. 88 797 ......................................... 405 1122 ........................................ 6(h)(1) ............................................................................................................................ 88 797 ......................................... 405 1130 ........................................ 6(h)(2) ............................................................................................................................ 88 797 ......................................... 405 2305 ........................................ 6(i) .................................................................................................................................. 88 797 ......................................... 405 1125 


hsrobinson on PROD1PC76 with BILLS
233 

HR 1107 RH 

........................................ 6(j) .................................................................................................................................. ........ ................................................ 405 1126 ........................................ 6(k) ................................................................................................................................. ........ ................................................ 405 1131 ........................................ 7 ...................................................................................................................................... 88 798 ......................................... 406 1701 ........................................ 9 ...................................................................................................................................... 88 799 ......................................... 408 1121 ........................................ 11 .................................................................................................................................... 88 799 ......................................... 410 1101 ........................................ 12 .................................................................................................................................... 88 799 ......................................... 411 1122 ........................................ 14(a) ............................................................................................................................... 88 800 ......................................... 412 2307 ........................................ 14(b) ............................................................................................................................... 88 800 ......................................... 412 2306 ........................................ 15 .................................................................................................................................... ........ ................................................ 413 1124 ........................................ 16 .................................................................................................................................... ........ ................................................ 414 1702 ........................................ 16A(a)–(c) ...................................................................................................................... ........ ................................................ 414b 1311 ........................................ 16A(d), (e) ...................................................................................................................... ........ ................................................ 414b 1312 ........................................ 18 .................................................................................................................................... ........ ................................................ 416 1708 ........................................ 19 .................................................................................................................................... ........ ................................................ 417 1712 ........................................ 20 .................................................................................................................................... ........ ................................................ 418 1705 ........................................ 21 .................................................................................................................................... ........ ................................................ 418a 2302 ........................................ 22 .................................................................................................................................... ........ ................................................ 418b 1707 ........................................ 23 .................................................................................................................................... ........ ................................................ 419 1709 ........................................ 25(a), (b) ........................................................................................................................ ........ ................................................ 421 1302 ........................................ 25(c)–(f) ......................................................................................................................... ........ ................................................ 421 1303 ........................................ 26(a)–(e) ......................................................................................................................... ........ ................................................ 422 1501 ........................................ 26(f)–(h)(1) .................................................................................................................... ........ ................................................ 422 1502 ........................................ 26(h)(2)–(4) .................................................................................................................... ........ ................................................ 422 1503 ........................................ 26(i) ................................................................................................................................ ........ ................................................ 422 ................................................................ 26(j) ................................................................................................................................ ........ ................................................ 422 1504 ........................................ 26(k) ............................................................................................................................... ........ ................................................ 422 1505 ........................................ 26(l) ................................................................................................................................ ........ ................................................ 422 1506 ........................................ 27(a), (b) ........................................................................................................................ ........ ................................................ 423 2102 ........................................ 27(c) ............................................................................................................................... ........ ................................................ 423 2103 ........................................ 27(d) ............................................................................................................................... ........ ................................................ 423 2104 ........................................ 27(e) ............................................................................................................................... ........ ................................................ 423 2105 ........................................ 27(f) ................................................................................................................................ ........ ................................................ 423 2101 ........................................ 27(g) ............................................................................................................................... ........ ................................................ 423 2106 ........................................ 27(h) ............................................................................................................................... ........ ................................................ 423 2107 ........................................ 29 .................................................................................................................................... ........ ................................................ 425 1304 ........................................ 30 .................................................................................................................................... ........ ................................................ 426 2301 ........................................ 31 .................................................................................................................................... ........ ................................................ 427 1901 ........................................ 32 .................................................................................................................................... ........ ................................................ 428 1902 ........................................ 32A ................................................................................................................................. ........ ................................................ 428a 1903 ........................................ 33 .................................................................................................................................... ........ ................................................ 429 1905 ........................................ 34 .................................................................................................................................... ........ ................................................ 430 1906 ........................................ 35(a), (b) ........................................................................................................................ ........ ................................................ 431 1907 ........................................ 35(c) ............................................................................................................................... ........ ................................................ 431 104 ........................................ 35A ................................................................................................................................. ........ ................................................ 431a 1908 ........................................ 36 .................................................................................................................................... ........ ................................................ 432 1711 ........................................ 37 .................................................................................................................................... ........ ................................................ 433 1703 


hsrobinson on PROD1PC76 with BILLS
234 

HR 1107 RH 

Schedule of Laws Repealed—Continued 

Statutes at Large 

Date Chapter or Public Law Section 

Statutes at Large U.S. Code (title 41 unless otherwise specified) 

Volume Page Existing Proposed 

........................................ 38 .................................................................................................................................... ........ ................................................ 434 2308 ........................................ 39 .................................................................................................................................... ........ ................................................ 435 1127 ........................................ 40 .................................................................................................................................... ........ ................................................ 436 2309 ........................................ 41 .................................................................................................................................... ........ ................................................ 437 2310 ........................................ 42 .................................................................................................................................... ........ ................................................ 438 7105 ........................................ 43 .................................................................................................................................... ........ ................................................ 439 1710 ........................................ 44 .................................................................................................................................... ........ ................................................ 440 2312 

1978 

Oct. 24 .................... 95–507 .............................. 222 (1st sentence) .......................................................................................................... 92 1771 ....................................... 405a 1121 

........................................ 222 (last sentence) ......................................................................................................... 92 1771 ....................................... 405a 1123 

Nov. 1 ...................... 95–563 .............................. 1 ...................................................................................................................................... 92 2383 ....................................... 601 note ........................

........................................ 2 ...................................................................................................................................... 92 2383 ....................................... 601 7101 ........................................ 3 ...................................................................................................................................... 92 2383 ....................................... 602 7102 ........................................ 4 ...................................................................................................................................... 92 2384 ....................................... 603 7102 ........................................ 5 ...................................................................................................................................... 92 2384 ....................................... 604 7103 ........................................ 6(a) (1st, 2d sentences) .................................................................................................. 92 2384 ....................................... 605 7103 ........................................ 6(a) (3d, 4th sentences) ................................................................................................. ........ ................................................ 605 7103 ........................................ 6(a) (5th–last sentences), (b), (c)(1)–(5) ....................................................................... 92 2384 ....................................... 605 7103 ........................................ 6(c)(6), (7), (d), (e) ........................................................................................................ ........ ................................................ 605 7103 ........................................ 7 ...................................................................................................................................... 92 2385 ....................................... 606 7104 ........................................ 8(a)–(e) ........................................................................................................................... 92 2385 ....................................... 607 7105 ........................................ 8(f) .................................................................................................................................. 92 2386 ....................................... 607 7106 ........................................ 8(g) ................................................................................................................................. 92 2387 ....................................... 607 7107 ........................................ 9 ...................................................................................................................................... 92 2387 ....................................... 608 7106 ........................................ 10(a) ............................................................................................................................... 92 2388 ....................................... 609 7104 ........................................ 10(b)–(e) ......................................................................................................................... 92 2388 ....................................... 609 7107 ........................................ 10(f) ................................................................................................................................ ........ ................................................ 609 7107 ........................................ 11 .................................................................................................................................... 92 2388 ....................................... 610 7105 ........................................ 12 .................................................................................................................................... 92 2389 ....................................... 611 7109 ........................................ 13 .................................................................................................................................... 92 2389 ....................................... 612 7108 ........................................ 15 .................................................................................................................................... 92 2391 ....................................... 613 ................................................................ 16 .................................................................................................................................... 92 2391 ....................................... 601 note ........................


hsrobinson on PROD1PC76 with BILLS
235 

HR 1107 RH 

1984 

Oct. 30 .................... 98–577 .............................. 502 .................................................................................................................................. 98 3085 ....................................... 414a 1706 

1988 

Oct. 1 ...................... 100–463 ............................ 8141 ................................................................................................................................ 102 2270–47 ................................. 405b 2304 Oct. 25 .................... 100–533 ............................ 502 .................................................................................................................................. 102 2697 ....................................... 417a 1713 Nov. 18 .................... 100–690 ............................ 5151 ................................................................................................................................ 102 4304 ....................................... 701 note ........................

........................................ 5152 ................................................................................................................................ 102 4304 ....................................... 701 8102 ........................................ 5153 ................................................................................................................................ 102 4306 ....................................... 702 8103 ........................................ 5154 ................................................................................................................................ 102 4307 ....................................... 703 8104 ........................................ 5155 ................................................................................................................................ 102 4307 ....................................... 704 8105 ........................................ 5156 ................................................................................................................................ 102 4308 ....................................... 705 8106 ........................................ 5157, 5158 ..................................................................................................................... 102 4308 ....................................... 706, 707 8101 ........................................ 5160 ................................................................................................................................ 102 4308 ....................................... 701 note ........................

1992 

Oct. 29 .................... 102–572 ............................ 907(a)(3) ........................................................................................................................ 106 4518 ....................................... 611 note 7109 

1993 

Nov. 30 .................... 103–160 ............................ 849(c), (d) ...................................................................................................................... 107 1725 ....................................... 10b–2 8304 

1994 

Oct. 13 .................... 103–355 ............................ 1054(b) ........................................................................................................................... 108 3265 ....................................... 253h note 4102 

........................................ 8002 ................................................................................................................................ 108 3386 ....................................... 264 note 3307 

1996 

Sept. 23 ................... 104–201 ............................ 827 .................................................................................................................................. 110 2611 ....................................... 10b–3 8305 

1997 

June 12 ................... 105–18 .............................. 7004 ................................................................................................................................ 111 192 ......................................... 253l–1 3904 

1999 

Sept. 29 ................... 106–57 .............................. 207 .................................................................................................................................. 113 423 ......................................... 253l–2 3904 Oct. 5 ...................... 106–65 .............................. 804 .................................................................................................................................. 113 704 ......................................... 253h note 4104 

2000 

Dec. 21 .................... 106–554 ............................ 1(a)(2) [title I, § 101] .................................................................................................... 114 2763A–100 ............................ 253l–3 3904 

........................................ 1(a)(2) [title I, § 110] .................................................................................................... 114 2763A–108 ............................ 253l–4 3904 

2003 

Feb. 20 .................... 108–7 ................................ div. H, title I, § 5 ............................................................................................................ 117 350 ......................................... 253l–5 3904 

........................................ div. H, title I, § 104 ........................................................................................................ 117 354 ......................................... 6a–3 6102 ........................................ div. H, title I, § 1002 ...................................................................................................... 117 357 ......................................... 253l–6 3904 ........................................ div. H, title I, § 1102 ...................................................................................................... 117 370 ......................................... 6a–4 6102 ........................................ div. H, title I, § 1202 ...................................................................................................... 117 373 ......................................... 253l–7 3904 

Aug. 15 .................... 108–72 .............................. 4 ...................................................................................................................................... 117 889 ......................................... 253l–8 3904 


hsrobinson on PROD1PC76 with BILLS
236 

HR 1107 RH 

Schedule of Laws Repealed—Continued 

Statutes at Large 

Date Chapter or Public Law Section 

Statutes at Large U.S. Code (title 41 unless otherwise specified) 

Volume Page Existing Proposed 

Nov. 24 .................... 108–136 ............................ 1412(a) ........................................................................................................................... 117 1664 ....................................... 433 note 1703 

........................................ 1413 ................................................................................................................................ 117 1665 ....................................... 433 note 1703 ........................................ 1414 ................................................................................................................................ 117 1666 ....................................... 433 note 1128 ........................................ 1428 ................................................................................................................................ 117 1670 ....................................... 253a note 3306 ........................................ 1431(b) ........................................................................................................................... 117 1671 ....................................... 405 note 1129 ........................................ 1441 ................................................................................................................................ 117 1673 ....................................... 428a note 1904 

2004 

Oct. 28 .................... 108–375 ............................ 807(c) ............................................................................................................................. 118 2011 ....................................... 431a note 1908

2006 

Oct. 17 .................... 109–364 ............................ 834(b), (c) (related to (b)) ............................................................................................. 120 2333 ....................................... 253i note 4105 

2008 

Jan. 28 .................... 110–181 ............................ 855 .................................................................................................................................. 122 251 ......................................... 433a 1704 June 30 ................... 110–252 ............................ 6102, 6103 ..................................................................................................................... 122 2386, 2387 ............................. 251 note 3509 Oct. 14 .................... 110–417 ............................ [div. A], title VIII, 841(a) .............................................................................................. 122 4537 ....................................... 405c(a) 2303 

........................................ [div. A], title VIII, 841(c) .............................................................................................. 122 4539 ....................................... 405c(c) 2303 ........................................ [div. A], title VIII, 863(a)–(e) ....................................................................................... 122 4547 ....................................... 253h note 3302 ........................................ [div. A], title VIII, 864(a), (b), (d), (e), (f)(2), (g) ....................................................... 122 4549 ....................................... 254 note 3906 ........................................ [div. A], title VIII, 866 .................................................................................................. 122 4551 ....................................... 254b note 4710 ........................................ [div. A], title VIII, 867 .................................................................................................. 122 4551 ....................................... 251 note 4711 ........................................ [div. A], title VIII, 868 .................................................................................................. 122 4552 ....................................... 254b note 3501 ........................................ [div. A], title VIII, 869 .................................................................................................. 122 4553 ....................................... 433a note 1704 ........................................ [div. A], title VIII, 872 .................................................................................................. 122 4555 ....................................... 417b 2313 ........................................ [div. A], title VIII, 874(a) .............................................................................................. 122 4558 ....................................... 405 note 2311 


hsrobinson on PROD1PC76 with BILLS
237 

HR 1107 RH 

Revised Statutes 

Revised Statutes Section 

United States Code (title 41) 

Existing Proposed 

3709 ............................................................................ 5 6101 

3710 ............................................................................ 8 6103 

3732 ............................................................................ 11 6301 

3733 ............................................................................ 12 6303 

3735 ............................................................................ 13 6304 

3736 ............................................................................ 14 6301 

3737 ............................................................................ 15 6305 

3741 ............................................................................ 22 6306 


hsrobinson on PROD1PC76 with BILLS
House Calendar No. 29 

111TH CONGRESS 

1ST SESSION H. R. 1107 

[Report No. 111–42] 

A BILL 

To enact certain laws relating to public contracts as 

title 41, United States Code, ‘‘Public Contracts’’. 

MARCH 23, 2009 

Reported, referred to the House Calendar, and ordered to 

be printed 


hsrobinson on PROD1PC76 with BILLS