IB 

House Calendar No. 230 

109TH CONGRESS 

2D SESSION H. R. 5414 

[Report No. 109–663] 

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

Code, ‘‘Public Contracts’’. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 17, 2006 

Mr. SENSENBRENNER (for himself and Mr. CONYERS) introduced the 

following bill; which was referred to the Committee on the Judiciary 

SEPTEMBER 15, 2006 

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. Technical amendments. 

Sec. 7. Transitional and savings provisions. 

Sec. 8. Repeals. 


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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. MISCELLANEOUS .................................................................................... 8101 

16 Subtitle I—Federal Procurement Policy 

17 PART A—GENERAL

Chapter Sec. 

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

18 PART 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 PART 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 PART A—GENERAL

21 CHAPTER 1—DEFINITIONS 

SUBCHAPTER I—SUBTITLE DEFINITIONS 

Sec. 

101. Administrator. 

102. Commercial component. 

103. Commercial item. 

104. Commercially available off-the-shelf item. 


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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—PART B DEFINITIONS 

131. Acquisition. 

132. Competitive procedures. 

133. Executive agency. 

134. Simplified acquisition threshold. 

SUBCHAPTER III—PART C DEFINITIONS 

151. Agency head. 

152. Competitive procedures. 

153. Simplified acquisition threshold. 

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 

26 (B) minor modifications made to meet Federal Government re27 quirements; 


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

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

3 in combination to the general public; 

4 (5) installation services, maintenance services, repair services, train5 ing services, and other services if— 

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

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

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

9 the item; and 

10 (B) the source of the services provides similar services contem11 poraneously to the general public under terms and conditions simi12 lar to those offered to the Federal Government; 

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

14 in the commercial marketplace based on established catalog or market 

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

16 and under standard commercial terms and conditions; 

17 (7) any item, combination of items, or service referred to in para18 graphs (1) to (6) even though the item, combination of items, or service 

19 is transferred between or among separate divisions, subsidiaries, or af20 filiates of a contractor; or 

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

22 accordance with conditions in the Federal Acquisition Regulation, that 

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

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

25 local governments. 

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

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

28 (1) means an item that— 

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

30 title); 

31 (B) is sold in substantial quantities in the commercial market32 place; and 

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

34 in the same form in which it is sold in the commercial market35 place; but 

36 (2) does not include bulk cargo, as defined in section 3 of the Ship37 ping Act of 1984 (46 App. U.S.C. 1702), such as agricultural products 

38 and petroleum products. 

39 § 105. Component 

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

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


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1 § 106. Federal Acquisition Regulation 

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

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

4 § 107. Full and open competition 

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

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

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

8 § 108. Item and item of supply 

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

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

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

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

13 and replenishment spare parts; but 

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

15 identification of an item. 

16 § 109. Major system 

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

18 combination of elements that will function together to produce the capabili19 ties required to fulfill a mission need. These elements may include hardware, 

20 equipment, software, or a combination of hardware, equipment, and soft21 ware, but do not include construction or other improvements to real prop22 erty. 

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

24 be a major system if— 

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

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

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

28 1980 constant dollars) or the eventual total expenditure for procure29 ment exceeds $300,000,000 (based on fiscal year 1980 constant dol30 lars); 

31 (2) a civilian agency is responsible for the system and total expendi32 tures for the system are estimated to exceed the greater of $750,000 

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

34 a major system established by the agency pursuant to Office of Man35 agement and Budget (OMB) Circular A–109, entitled ‘‘Major Systems 

36 Acquisitions’’; or 

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

38 system a major system. 

39 § 110. Nondevelopmental item 

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

41 (1) a commercial item; 


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1 (2) a previously developed item of supply that is in use by a depart2 ment or agency of the Federal Government, a State or local govern3 ment, or a foreign government with which the United States has a mu4 tual defense cooperation agreement; 

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

6 only minor modification or modification of the type customarily avail7 able in the commercial marketplace to meet the requirements of the 

8 procuring department or agency; or 

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

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

11 is not yet in use. 

12 § 111. Procurement 

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

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

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

16 closeout. 

17 § 112. Procurement system 

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

19 the procurement process, the professional development of procurement per20 sonnel, and the management structure for carrying out the procurement 

21 function. 

22 § 113. Responsible source 

23 In this subtitle, the term ‘‘responsible source’’ means a prospective con24 tractor that— 

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

26 ability to obtain those resources; 

27 (2) is able to comply with the required or proposed delivery or per28 formance schedule, taking into consideration all existing commercial 

29 and Government business commitments; 

30 (3) has a satisfactory performance record; 

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

32 (5) has the necessary organization, experience, accounting and oper33 ational controls, and technical skills, or the ability to obtain the organi34 zation, experience, controls, and skills; 

35 (6) has the necessary production, construction, and technical equip36 ment and facilities, or the ability to obtain the equipment and facilities; 

37 and 

38 (7) is otherwise qualified and eligible to receive an award under ap39 plicable laws and regulations. 


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1 § 114. Standards 

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

3 the effectiveness of the procurement system by measuring the performance 

4 of the various elements of the system. 

5 § 115. Supplies 

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

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

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

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

10 and replenishment spare parts; but 

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

12 or identification of an item. 

13 § 116. Technical data 

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

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

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

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

18 but 

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

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

21 contract administration. 

22 SUBCHAPTER II—PART B DEFINITIONS 

23 § 131. Acquisition 

24 In part B, the term ‘‘acquisition’’— 

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

26 contract for purchase or lease, property or services (including construc27 tion) that support the missions and goals of an executive agency, from 

28 the point at which the requirements of the executive agency are estab29 lished in consultation with the chief acquisition officer of the executive 

30 agency; and 

31 (2) includes— 

32 (A) the process of acquiring property or services that are al33 ready in existence, or that must be created, developed, dem34 onstrated, and evaluated; 

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

36 (C) solicitation and selection of sources; 

37 (D) award of contracts; 

38 (E) contract performance; 

39 (F) contract financing; 

40 (G) management and measurement of contract performance 

41 through final delivery and payment; and 


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

2 process of fulfilling agency requirements by contract. 

3 § 132. Competitive procedures 

4 In part B, the term ‘‘competitive procedures’’ means procedures under 

5 which an agency enters into a contract pursuant to full and open competi6 tion. 

7 § 133. Executive agency 

8 In part B, the term ‘‘executive agency’’ means— 

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

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

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

12 5; and 

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

14 91 of title 31. 

15 § 134. Simplified acquisition threshold 

16 In part B, the term ‘‘simplified acquisition threshold’’ means $100,000. 

17 SUBCHAPTER III—PART C DEFINITIONS 

18 § 151. Agency head 

19 In part C, the term ‘‘agency head’’ means the head or any assistant head 

20 of an executive agency, and may at the option of the Administrator of Gen21 eral Services include the chief official of any principal organizational unit 

22 of the General Services Administration. 

23 § 152. Competitive procedures 

24 In part C, the term ‘‘competitive procedures’’ means procedures under 

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

26 competition. The term also includes— 

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

28 accordance with chapter 11 of title 40; 

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

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

31 appropriate) of those proposals; 

32 (3) the procedures established by the Administrator of General Serv33 ices for the multiple awards schedule program of the General Services 

34 Administration if— 

35 (A) participation in the program has been open to all respon36 sible sources; and 

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

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

39 Government; 

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

41 Business Act (15 U.S.C. 644) as long as all responsible business conVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 cerns that are entitled to submit offers for those procurements are per2 mitted to compete; and 

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

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

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

6 § 153. Simplified acquisition threshold 

7 (1) IN GENERAL.—In part C, the term ‘‘simplified acquisition threshold’’ 

8 has the meaning provided that term in section 134 of this title, except that, 

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

10 made, outside the United States in support of a contingency operation or 

11 a humanitarian or peacekeeping operation, the term means an amount equal 

12 to two times the amount specified for that term in section 134 of this title. 

13 (2) SPECIFIC DEFINITIONS RELATING TO SIMPLIFIED ACQUISITION

14 THRESHOLD.—In paragraph (1)— 

15 (A) CONTINGENCY OPERATION.—The term ‘‘contingency operation’’ 

16 has the meaning given that term in section 101(a) of title 10. 

17 (B) HUMANITARIAN OR PEACEKEEPING OPERATION.—The term ‘‘hu18 manitarian or peacekeeping operation’’ means a military operation in 

19 support of the provision of humanitarian or foreign disaster assistance 

20 or in support of a peacekeeping operation under chapter VI or VII of 

21 the Charter of the United Nations. The term does not include routine 

22 training, force rotation, or stationing. 

23 PART B—OFFICE OF FEDERAL PROCUREMENT POLICY

24 CHAPTER 11—ESTABLISHMENT OF OFFICE AND 

25 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 part on other law. 

1131. Annual report. 

26 SUBCHAPTER I—GENERAL 

27 § 1101. Office of Federal Procurement Policy 

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

29 in the Office of Management and Budget. 


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1 (b) PURPOSES.—The purposes of the Office of Federal Procurement Pol2 icy are to— 

3 (1) provide overall direction of Government-wide procurement poli4 cies, regulations, procedures, and forms for executive agencies; and 

5 (2) promote economy, efficiency, and effectiveness in the procure6 ment of property and services by the executive branch of the Federal 

7 Government. 

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

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

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

11 § 1102. Administrator 

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

13 Policy is the Administrator for Federal Procurement Policy. 

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

15 and with the advice and consent of the Senate. 

16 SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE 

17 ADMINISTRATOR 

18 § 1121. General authority 

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

20 provide overall direction of procurement policy and leadership in the devel21 opment of procurement systems of the executive agencies. 

22 (b) FEDERAL ACQUISITION REGULATION.—To the extent that the Ad23 ministrator considers appropriate in carrying out the policies and functions 

24 set forth in this part, and with due regard for applicable laws and the pro25 gram activities of the executive agencies, the Administrator may prescribe 

26 Government-wide procurement policies. The policies shall be implemented in 

27 a single Government-wide procurement regulation called the Federal Acqui28 sition Regulation. 

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

30 (1) AREAS OF PROCUREMENT FOR WHICH POLICIES ARE TO BE FOL31 LOWED.—The policies implemented in the Federal Acquisition Regula32 tion shall be followed by executive agencies in the procurement of— 

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

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

35 (C) construction, alteration, repair, or maintenance of real prop36 erty. 

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

38 shall establish procedures to ensure compliance with the Federal Acqui39 sition Regulation by all executive agencies. 

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

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


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

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

3 2304 of this title. 

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

5 ACT.—In any instance in which the Administrator determines that the De6 partment of Defense, the National Aeronautics and Space Administration, 

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

8 issue Government-wide regulations, procedures, and forms in a timely man9 ner, including regulations, procedures, and forms necessary to implement 

10 prescribed policy the Administrator initiates under subsection (b), the Ad11 ministrator, with due regard for applicable laws and the program activities 

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

13 forth in this part, shall prescribe Government-wide regulations, procedures, 

14 and forms which executive agencies shall follow in procuring items listed in 

15 subsection (c)(1). 

16 (e) OVERSIGHT OF PROCUREMENT REGULATIONS OF OTHER AGEN17 CIES.—The Administrator, with the concurrence of the Director of the Of18 fice of Management and Budget, and with consultation with the head of the 

19 agency concerned, may deny the promulgation of or rescind any Govern20 ment-wide regulation or final rule or regulation of any executive agency re21 lating to procurement if the Administrator determines that the rule or regu22 lation is inconsistent with any policies, regulations, or procedures issued 

23 pursuant to subsection (b). 

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

25 under this part shall not be construed to— 

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

27 of their need for, or their use of, specific property, services, or con28 struction, including particular specifications for the property, services, 

29 or construction; or 

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

31 actions in the award or administration of procurement contracts. 

32 § 1122. Functions 

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

34 (1) providing leadership and ensuring action by the executive agen35 cies in establishing, developing, and maintaining the single system of 

36 simplified Government-wide procurement regulations and resolving dif37 ferences among the executive agencies in developing simplified Govern38 ment-wide procurement regulations, procedures, and forms; 

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

40 system standards that executive agencies shall implement in their pro41 curement systems; 


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1 (3) providing leadership and coordination in formulating the execu2 tive branch position on legislation relating to procurement; 

3 (4)(A) providing for and directing the activities of the computer4 based Federal Procurement Data System (including recommending to 

5 the Administrator of General Services a sufficient budget for those ac6 tivities), which shall be located in the General Services Administration, 

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

8 data; and 

9 (B) ensuring executive agency compliance with the record require10 ments of section 1710 of this title; 

11 (5) providing for and directing the activities of the Federal Acquisi12 tion Institute (including recommending to the Administrator of General 

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

14 in the General Services Administration, in order to— 

15 (A) foster and promote the development of a professional acqui16 sition workforce Government-wide; 

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

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

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

20 by the executive agencies; 

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

22 Office of Personnel Management, from the heads of executive 

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

24 (D) periodically analyze acquisition career fields to identify crit25 ical competencies, duties, tasks, and related academic pre26 requisites, skills, and knowledge; 

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

28 highly qualified candidates for acquisition fields; 

29 (F) develop instructional materials for acquisition personnel in 

30 coordination with private and public acquisition colleges and train31 ing facilities; 

32 (G) evaluate the effectiveness of training and career develop33 ment programs for acquisition personnel; 

34 (H) promote the establishment and utilization of academic pro35 grams by colleges and universities in acquisition fields; 

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

37 intern and training programs; and 

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

39 directed by the Administrator; 

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


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

2 timely solicitation of the viewpoints of interested parties in the develop3 ment of procurement policies, regulations, procedures, and forms; 

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

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

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

7 Federal Government; 

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

9 vendor excellence; 

10 (10) providing for a Government-wide award to recognize and pro11 mote excellence in officers and employees of the Federal Government 

12 serving in procurement-related positions; 

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

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

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

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

17 and controlled by socially and economically disadvantaged individuals, 

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

19 the maximum practicable opportunities to participate in procurements 

20 that are conducted for amounts below the simplified acquisition thresh21 old; 

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

23 participation by small businesses, small business concerns owned and 

24 controlled by service-disabled veterans, qualified HUBZone small busi25 ness concerns (as defined in section 3(p) of the Small Business Act (15 

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

27 economically disadvantaged individuals, and small businesses owned 

28 and controlled by women; and 

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

30 the Commission on Government Procurement. 

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

32 subsection (a), the Administrator— 

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

34 Small Business Administration; 

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

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

37 those functions; and 

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

39 to assist in providing for the establishment, development, and mainte40 nance of a single system of simplified Government-wide procurement 


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1 regulations and to assist in performing any other function the Adminis2 trator considers appropriate. 

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

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

5 duties, functions, or responsibilities expressly assigned by this part 

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

7 (2) BY ADMINISTRATOR.— 

8 (A) WITHIN OFFICE.—The Administrator may make and au9 thorize delegations within the Office of Federal Procurement Pol10 icy that the Administrator determines to be necessary to carry out 

11 this part. 

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

13 may delegate, and authorize successive redelegations of, an author14 ity, function, or power of the Administrator under this part (other 

15 than the authority to provide overall direction of Federal procure16 ment policy and to prescribe policies and regulations to carry out 

17 the policy) to another executive agency with the consent of the 

18 head of the executive agency or at the direction of the President. 

19 § 1123. Small business concerns 

20 In formulating the Federal Acquisition Regulation and procedures to en21 sure compliance with the Regulation, the Administrator, in consultation with 

22 the Small Business Administration, shall— 

23 (1) conduct analyses of the impact on small business concerns result24 ing from revised procurement regulations; and 

25 (2) incorporate into revised procurement regulations simplified bid26 ding, contract performance, and contract administration procedures for 

27 small business concerns. 

28 § 1124. Tests of innovative procurement methods and proce29 dures 

30 (a) IN GENERAL.—The Administrator may develop innovative procure31 ment methods and procedures to be tested by selected executive agencies. 

32 In developing a program to test innovative procurement methods and proce33 dures under this subsection, the Administrator shall consult with the heads 

34 of executive agencies to— 

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

36 (2) develop the guidelines and procedures for carrying out the pro37 gram and the criteria to be used in measuring the success of the pro38 gram; 

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

40 from the innovative procurement methods and procedures tested under 

41 the program; 


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1 (4) select the appropriate executive agencies or components of execu2 tive agencies to carry out the program; 

3 (5) specify the categories and types of products or services to be pro4 cured under the program; and 

5 (6) develop the methods to be used to analyze the results of the pro6 gram. 

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

8 innovative procurement methods and procedures may not be carried out un9 less approved by the heads of the executive agencies selected to carry out 

10 the program. 

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

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

13 out a proposed program to test innovative procurement methods and proce14 dures under subsection (a), the Administrator shall transmit notice of the 

15 proposed program to the Committee on Government Reform of the House 

16 of Representatives and the Committee on Homeland Security and Govern17 mental Affairs of the Senate and request that the Committees take the nec18 essary action to provide that the provision of law does not apply with re19 spect to the proposed program. The notification to Congress shall include— 

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

21 purpose of the proposed program); 

22 (2) the procedures to be followed in carrying out the proposed pro23 gram; 

24 (3) the provisions of law affected and the application of any provi25 sion of law that must be waived in order to carry out the proposed pro26 gram; and 

27 (4) the executive agencies involved in carrying out the proposed pro28 gram. 

29 § 1125. Recipients of Federal grants or assistance 

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

31 activities of the executive agencies administering Federal programs of 

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

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

34 appropriate and that executive agencies shall follow in providing for the pro35 curement, to the extent required under those programs, of property or serv36 ices referred to in section 1121(c)(1) of this title by recipients of Federal 

37 grants or assistance under the programs. 

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

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

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

41 or assistance; or 


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

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

3 a State or political subdivision. 

4 § 1126. Policy regarding consideration of contractor past 

5 performance 

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

7 guidance regarding consideration of the past contract performance of 

8 offerors in awarding contracts. The guidance shall include— 

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

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

11 specifications, and other relevant performance factors that facilitate 

12 consistent and fair evaluation by all executive agencies; 

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

14 contract performance that, to the maximum extent practicable, facili15 tate automated collection, maintenance, and dissemination of informa16 tion and provide for ease of collection, maintenance, and dissemination 

17 of information by other methods, as necessary; 

18 (3) policies for ensuring that— 

19 (A) offerors are afforded an opportunity to submit relevant in20 formation on past contract performance, including performance 

21 under contracts entered into by the executive agency concerned, 

22 other departments and agencies of the Federal Government, agen23 cies of State and local governments, and commercial customers; 

24 and 

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

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

27 may be maintained and considered. 

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

29 contract performance of an offeror or the information on past contract per30 formance is not available, the offeror may not be evaluated favorably or un31 favorably on the factor of past contract performance. 

32 § 1127. Determining benchmark compensation amount 

33 (a) DEFINITIONS.—In this section: 

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

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

36 compensation provided for all senior executives of all benchmark cor37 porations for the most recent year for which data is available at the 

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

39 (2) BENCHMARK CORPORATION.—The term ‘‘benchmark corpora40 tion’’, with respect to a fiscal year, means a publicly-owned United 


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

2 the fiscal year. 

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

4 means the total amount of wages, salary, bonuses, and deferred com5 pensation for the fiscal year, whether paid, earned, or otherwise accru6 ing, as recorded in an employer’s cost accounting records for the fiscal 

7 year. 

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

9 contractor establishes for accounting purposes. 

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

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

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

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

14 United States; and 

15 (B) whose voting stock is publicly traded. 

16 (6) SENIOR EXECUTIVES.—The term ‘‘senior executives’’, with re17 spect to a contractor, means the 5 most highly compensated employees 

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

19 contractor. 

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

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

22 the Administrator shall review commercially available surveys of executive 

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

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

25 determinations under this subsection, the Administrator shall consult with 

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

27 executive agencies as the Administrator considers appropriate. 

28 § 1128. Maintaining necessary capability with respect to ac29 quisition of architectural and engineering services 

30 The Administrator, in consultation with the Secretary of Defense, the Ad31 ministrator of General Services, and the Director of the Office of Personnel 

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

33 Government maintains the necessary capability with respect to the acquisi34 tion of architectural and engineering services to— 

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

36 determine agency requirements for those services; 

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

38 (3) establish professional standards; 

39 (4) develop scopes of work; and 

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


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1 § 1129. Center of excellence in contracting for services 

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

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

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

5 in the public and private sectors. 

6 § 1130. Effect of part on other law 

7 This part does not impair or affect the authorities or responsibilities re8 lating to the procurement of real property conferred by part C of this sub9 title and chapters 1 to 11 of title 40. 

10 § 1131. Annual report 

11 The Administrator annually shall submit to Congress an assessment of 

12 the progress made in executive agencies in implementing the policy regard13 ing major acquisitions that is stated in section 3103(a) of this title. The 

14 Administrator shall use data from existing management systems in making 

15 the assessment. 

16 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. 

17 SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY 

18 COUNCIL 

19 § 1301. Definition 

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

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

22 § 1302. Establishment and membership 

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

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

25 policy and Government-wide procurement regulatory activities in the Fed26 eral Government. 

27 (b) MEMBERSHIP.— 

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

29 (A) the Administrator; 

30 (B) the Secretary of Defense; 

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

32 (D) the Administrator of General Services. 

33 (2) DESIGNATION OF OTHER OFFICIALS.— 

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

35 section 121(d)(1) and (2) of title 40, the officials specified in subVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 paragraphs (B) to (D) of paragraph (1) may designate to serve 

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

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

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

5 in the case of the Secretary of Defense, an official at an orga6 nizational level not lower than an Assistant Secretary of De7 fense within the Office of the Under Secretary of Defense for 

8 Acquisition, Technology, and Logistics; or 

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

10 the responsibility for acquisition policy for that agency, the 

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

12 (B) LIMITATION ON DESIGNATION.—No other official or em13 ployee may be designated to serve on the Council. 

14 § 1303. Functions and authority 

15 (a) FUNCTIONS.— 

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

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

18 and 2304 of this title, the Administrator of General Services, the Sec19 retary of Defense, and the Administrator of National Aeronautics and 

20 Space, pursuant to their respective authorities under part C of this 

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

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

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

24 procurement regulation, to be known as the Federal Acquisition Regu25 lation. 

26 (2) LIMITATION ON OTHER REGULATIONS.—Other regulations relat27 ing to procurement issued by an executive agency shall be limited to— 

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

29 and procedures within the agency; and 

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

31 specific and unique needs of the agency. 

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

33 consultation with the Council, shall ensure that procurement regula34 tions prescribed by executive agencies are consistent with the Federal 

35 Acquisition Regulation and in accordance with the policies prescribed 

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

37 (4) REQUEST TO REVIEW REGULATION.— 

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

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

40 regulation relating to procurement on the basis that the regulation 

41 is inconsistent with the Federal Acquisition Regulation. 


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

2 does not, on its face, state a valid basis for the review, the Admin3 istrator shall complete the review not later than 60 days after re4 ceiving the request. The time for completion of the review may be 

5 extended if the Administrator determines that an additional period 

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

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

8 will be completed. 

9 (5) WHEN REGULATION IS INCONSISTENT OR NEEDS TO BE IM10 PROVED.—If the Administrator determines that a regulation relating to 

11 procurement is inconsistent with the Federal Acquisition Regulation or 

12 that the regulation otherwise should be revised to remove an inconsist13 ency with the policies prescribed under section 1121(b) of this title, the 

14 Administrator shall rescind or deny the promulgation of the regulation 

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

16 1125, 1126, 1130, 1131, and 2304 of this title as may be necessary 

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

18 regulation, although not inconsistent with the Federal Acquisition Reg19 ulation or those policies, should be revised to improve compliance with 

20 the Regulation or policies, the Administrator shall take action author21 ized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, 

22 and 2304 as may be necessary and appropriate. 

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

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

25 available. 

26 (b) ADDITIONAL RESPONSIBILITIES OF MEMBERSHIP.— 

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

28 the head of the agency concerned, each official who represents an agen29 cy on the Council pursuant to section 1302(b) of this title shall— 

30 (A) approve or disapprove all regulations relating to procure31 ment that are proposed for public comment, prescribed in final 

32 form, or otherwise made effective by that agency before the regula33 tion may be prescribed in final form, or otherwise made effective, 

34 except that the official may grant an interim approval, without re35 view, for not more than 60 days for a procurement regulation in 

36 urgent and compelling circumstances; 

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

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

39 relates to procurement rules or regulations; and 

40 (C) eliminate or reduce— 


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1 (i) any redundant or unnecessary levels of review and ap2 proval in the procurement system of that agency; and 

3 (ii) redundant or unnecessary procurement regulations 

4 which are unique to that agency. 

5 (2) LIMITATION ON DELEGATION.—The authority to review and ap6 prove or disapprove regulations under paragraph (1)(A) may not be 

7 delegated to an individual outside the office of the official who rep8 resents the agency on the Council pursuant to section 1302(b) of this 

9 title. 

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

11 the Council shall be in accordance with and furtherance of the policies pre12 scribed under section 1121(b) of this title. 

13 (d) GENERAL AUTHORITY WITH RESPECT TO FEDERAL ACQUISITION

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

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

16 and changes in, the Federal Acquisition Regulation. 

17 § 1304. Contract clauses and certifications 

18 (a) REPETITIVE NONSTANDARD CONTRACT CLAUSES DISCOURAGED.— 

19 The Council shall prescribe regulations to discourage the use of a non20 standard contract clause on a repetitive basis. The regulations shall include 

21 provisions that— 

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

23 as nonstandard clauses; and 

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

25 repetitive basis by an official at a level of responsibility above the con26 tracting officer. 

27 (b) WHEN CERTIFICATION REQUIRED.— 

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

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

30 be made by the Federal Government unless that provision of law spe31 cifically provides that such a certification shall be required. 

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

33 certification by a contractor or offeror may not be included in the Fed34 eral Acquisition Regulation unless— 

35 (A) the certification requirement is specifically imposed by stat36 ute; or 

37 (B) written justification for the certification requirement is pro38 vided to the Administrator by the Council and the Administrator 

39 approves in writing the inclusion of the certification requirement. 

40 (3) EXECUTIVE AGENCY PROCUREMENT REGULATION.— 


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

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

3 Secretary of Defense. 

4 (B) WHEN CERTIFICATION REQUIREMENT MAY BE INCLUDED

5 IN REGULATION.—A requirement for a certification by a con6 tractor or offeror may not be included in a procurement regulation 

7 of an executive agency unless— 

8 (i) the certification requirement is specifically imposed by 

9 statute; or 

10 (ii) written justification for the certification requirement is 

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

12 procurement executive of the agency and the head of the exec13 utive agency approves in writing the inclusion of the certifi14 cation requirement. 

15 SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL 

16 § 1311. Establishment and membership 

17 (a) ESTABLISHMENT.—There is in the executive branch a Chief Acquisi18 tion Officers Council. 

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

20 (1) the Deputy Director for Management of the Office of Manage21 ment and Budget; 

22 (2) the Administrator; 

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

24 Logistics; 

25 (4) the chief acquisition officer of each executive agency that is re26 quired to have a chief acquisition officer under section 1702 of this 

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

28 and 

29 (5) any other senior agency officer of each executive agency, ap30 pointed by the head of the agency in consultation with the Chairman 

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

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

33 associated range of acquisition activities. 

34 (c) LEADERSHIP AND SUPPORT.— 

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

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

37 (2) VICE CHAIRMAN.—The Vice Chairman of the Council shall be se38 lected by the Council from among its members. The Vice Chairman 

39 serves for one year and may serve multiple terms. 


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1 (3) LEADER OF ACTIVITIES.—The Administrator shall lead the ac2 tivities of the Council on behalf of the Deputy Director for Manage3 ment. 

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

5 administrative and other support for the Council. 

6 § 1312. Functions 

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

8 principal interagency forum for monitoring and improving the Federal ac9 quisition system. 

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

11 following: 

12 (1) Develop recommendations for the Director of the Office of Man13 agement and Budget on Federal acquisition policies and requirements. 

14 (2) Share experiences, ideas, best practices, and innovative ap15 proaches related to Federal acquisition. 

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

17 coordination of multiagency projects and other innovative initiatives to 

18 improve Federal acquisition. 

19 (4) Promote effective business practices that ensure the timely deliv20 ery of best value products to the Federal Government and achieve ap21 propriate public policy objectives. 

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

23 in the Federal acquisition system. 

24 (6) Work with the Office of Personnel Management to assess and ad25 dress the hiring, training, and professional development needs of the 

26 Federal Government related to acquisition. 

27 (7) Work with the Administrator and the Federal Acquisition Regu28 latory Council to promote the business practices referred to in para29 graph (4) and other results of the functions carried out under this sub30 section. 

31 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. 

32 § 1501. Cost Accounting Standards Board 

33 (a) ORGANIZATION.—The Cost Accounting Standards Board is an inde34 pendent board in the Office of Federal Procurement Policy. 

35 (b) MEMBERSHIP.— 

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

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


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1 serves as Chairman. The other 4 members, all of whom shall have expe2 rience in Federal Government contract cost accounting, are as follows: 

3 (A) 2 representatives of the Federal Government— 

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

5 Defense appointed by the Secretary of Defense; and 

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

7 Services Administration appointed by the Administrator of 

8 General Services. 

9 (B) 2 individuals from the private sector, each of whom is ap10 pointed by the Administrator, and— 

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

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

13 accounting problems and systems. 

14 (2) TERM OF OFFICE.— 

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

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

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

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

19 member expiring the year after that. 

20 (B) INDIVIDUAL REQUIRED TO REMAIN WITH APPOINTING

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

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

23 agency from which that member was appointed. 

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

25 manner in which the original appointment was made. A member ap26 pointed to fill a vacancy serves for the remainder of the term for which 

27 that member’s predecessor was appointed. 

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

29 Board, may— 

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

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

32 the competitive service; and 

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

34 51 and subchapter III of chapter 53 of title 5 relating to classification 

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

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

37 section 5376 of title 5. 

38 (d) OTHER STAFF.—The Administrator may appoint, fix the compensa39 tion of, and remove additional employees of the Board under the applicable 

40 provisions of title 5. 


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

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

3 and responsibilities— 

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

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

6 (2) the Administrator, after consultation with the Board, may pro7 cure temporary and intermittent services of personnel under section 

8 3109(b) of title 5. 

9 (f) COMPENSATION.— 

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

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

12 and officers and employees of other agencies of the Federal Govern13 ment who are used under subsection (e)(1), shall not receive additional 

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

15 employing department or agency of the officer or employee. 

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

17 Board appointed from the private sector shall receive compensation at 

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

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

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

21 Board. 

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

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

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

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

26 time) in which the individual is properly engaged in the actual perform27 ance of duties under this chapter. 

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

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

30 intermittent basis under this chapter shall be allowed travel expenses 

31 in accordance with section 5703 of title 5. 

32 § 1502. Cost accounting standards 

33 (a) AUTHORITY.— 

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

35 Standards Board has exclusive authority to prescribe, amend, and re36 scind cost accounting standards, and interpretations of the standards, 

37 designed to achieve uniformity in the cost accounting standards gov38 erning measurement, assignment, and allocation of costs to contracts 

39 with the Federal Government. 

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

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


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

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

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

4 of the Board. 

5 (b) MANDATORY USE OF STANDARDS.— 

6 (1) SUBCONTRACT.— 

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

8 includes a transfer of commercial items between divisions, subsidi9 aries, or affiliates of a contractor or subcontractor. 

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

11 standards prescribed under this chapter are mandatory for use by 

12 all executive agencies and by contractors and subcontractors in es13 timating, accumulating, and reporting costs in connection with the 

14 pricing and administration of, and settlement of disputes con15 cerning, all negotiated prime contract and subcontract procure16 ments with the Federal Government in excess of the amount set 

17 forth in section 2306a(a)(1)(A)(i) of title 10 as the amount is ad18 justed in accordance with applicable requirements of law. 

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

20 not apply to— 

21 (i) a contract or subcontract for the acquisition of a com22 mercial item; 

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

24 based on a price set by law or regulation; 

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

26 the basis of adequate price competition without submission of 

27 certified cost or pricing data; or 

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

29 $7,500,000 if, when the contract or subcontract is entered 

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

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

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

33 covered by the standards. 

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

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

36 requirements of this chapter; and 

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

38 this chapter for individual contracts and subcontracts. 

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

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

41 the applicability of the cost accounting standards for a contract 


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1 or subcontract with a value of less than $15,000,000 if that offi2 cial determines in writing that the segment of the contractor or 

3 subcontractor that will perform the work— 

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

5 and 

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

7 standards under this section. 

8 (B) IN EXCEPTIONAL CIRCUMSTANCES.—The head of an execu9 tive agency may waive the applicability of the cost accounting 

10 standards for a contract or subcontract under exceptional cir11 cumstances when necessary to meet the needs of the agency. A de12 termination to waive the applicability of the standards under this 

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

14 statement of the circumstances justifying the waiver. 

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

16 of an executive agency may not delegate the authority under sub17 paragraph (A) or (B) to an official in the executive agency below 

18 the senior policymaking level in the executive agency. 

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

20 Federal Acquisition Regulation shall include— 

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

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

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

24 be granted. 

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

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

27 agency to the Board on an annual basis. 

28 (c) REQUIRED BOARD ACTION FOR PRESCRIBING STANDARDS AND IN29 TERPRETATIONS.—Before prescribing cost accounting standards and inter30 pretations, the Board shall— 

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

32 Comptroller General, professional accounting organizations, contrac33 tors, and other interested parties— 

34 (A) the probable costs of implementation, including any infla35 tionary effects, compared to the probable benefits; 

36 (B) the advantages, disadvantages, and improvements antici37 pated in the pricing and administration of, and settlement of dis38 putes concerning, contracts; and 

39 (C) the scope of, and alternatives available to, the action pro40 posed to be taken; 


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

2 issues reviewed under paragraph (1); 

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

4 Federal Register to solicit comments on the report prepared under 

5 paragraph (2); 

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

7 submit their views and comments; and 

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

9 and consider any recommendation the Comptroller General may make; 

10 and 

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

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

13 submit their views and comments. 

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

15 and modifications thereof prescribed or amended under this chapter shall 

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

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

18 Board determines that a longer period is necessary. The Board shall deter19 mine implementation dates for contractors and subcontractors. The dates 

20 may not be later than the beginning of the second fiscal year of the con21 tractor or subcontractor after the standard becomes effective. 

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

23 standards, and modifications thereof prescribed or amended under this 

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

25 if necessary. 

26 (f) IMPLEMENTING REGULATIONS.—The Board shall prescribe regula27 tions for the implementation of cost accounting standards prescribed or in28 terpreted under this section. The regulations shall be incorporated into the 

29 Federal Acquisition Regulation and shall require contractors and sub30 contractors as a condition of contracting with the Federal Government to— 

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

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

33 used for allocating indirect costs; and 

34 (2) agree to a contract price adjustment, with interest, for any in35 creased costs the Federal Government pays the contractor or subcon36 tractor because of a change in the contractor’s or subcontractor’s cost 

37 accounting practices or a failure by the contractor or subcontractor to 

38 comply with applicable cost accounting standards. 

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

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

41 and 701 to 706 of title 5. 


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1 § 1503. Contract price adjustment 

2 (a) DISAGREEMENT CONSTITUTES A DISPUTE.—If the Federal Govern3 ment and a contractor or subcontractor fail to agree on a contract price ad4 justment, including whether the contractor or subcontractor has complied 

5 with the applicable cost accounting standards, the disagreement will con6 stitute a dispute under chapter 69 of this title. 

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

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

9 relevant contracts between the Federal Government and the contractor that 

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

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

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

13 recover costs greater than the aggregate increased cost to the Federal Gov14 ernment on the relevant contracts subject to the price adjustment unless the 

15 contractor made a change in its cost accounting practices of which it was 

16 aware or should have been aware at the time of the price negotiation and 

17 which it failed to disclose to the Federal Government. 

18 (c) INTEREST.—The interest rate applicable to a contract price adjust19 ment is the annual rate of interest established under section 6621 of the 

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

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

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

23 compensation for the price adjustment. 

24 § 1504. Effect on other standards and regulations 

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

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

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

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

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

30 Board under this chapter; and 

31 (2) are subject to the provisions of this part in the same manner as 

32 if prescribed by the Board under this part. 

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

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

35 accounting standard prescribed or amended under this chapter, the Admin36 istrator, under the authority in sections 1121, 1122(a) to (c)(1), 1125, 

37 1126, 1130, 1131, and 2304 of this title, shall rescind or deny the promul38 gation of the inconsistent regulation or proposed regulation and take other 

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

40 1126, 1130, 1131, and 2304. 


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

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

3 not subject to regulations established by another executive agency that dif4 fer from those standards with respect to the measurement, assignment, and 

5 allocation of those costs. 

6 § 1505. Examinations 

7 To determine whether a contractor or subcontractor has complied with 

8 cost accounting standards prescribed under this chapter and has followed 

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

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

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

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

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

14 or subcontractor relating to compliance with the standards. 

15 § 1506. Authorization of appropriations 

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

17 CHAPTER 17—AGENCY RESPONSIBILITIES AND 

18 PROCEDURES 

Sec. 

1701. Cooperation with the Administrator. 

1702. Chief Acquisition Officers and senior procurement executives. 

1703. Acquisition workforce. 

1704. Advocates for competition. 

1705. Personnel evaluation. 

1706. Publication of proposed regulations. 

1707. Procurement notice. 

1708. Contracting functions performed by Federal personnel. 

1709. Value engineering. 

1710. Record requirements. 

1711. Procurement data. 

19 § 1701. Cooperation with the Administrator 

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

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

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

23 performance of functions under this part; and 

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

25 give the Administrator access to, all information and records in its pos26 session that the Administrator may determine to be necessary for the 

27 performance of the functions of the Office. 

28 § 1702. Chief Acquisition Officers and senior procurement 

29 executives 

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

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

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

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


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1 shall appoint or designate a non-career employee as Chief Acquisition Offi2 cer for the agency. 

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

4 (1) PRIMARY DUTY.—The primary duty of a Chief Acquisition Offi5 cer is acquisition management. 

6 (2) ADVICE AND ASSISTANCE.—A Chief Acquisition Officer shall ad7 vise and assist the head of the executive agency and other agency offi8 cials to ensure that the mission of the executive agency is achieved 

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

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

11 Officer include— 

12 (A) monitoring the performance of acquisition activities and ac13 quisition programs of the executive agency, evaluating the per14 formance of those programs on the basis of applicable performance 

15 measurements, and advising the head of the executive agency re16 garding the appropriate business strategy to achieve the mission 

17 of the executive agency; 

18 (B) increasing the use of full and open competition in the acqui19 sition of property and services by the executive agency by estab20 lishing policies, procedures, and practices that ensure that the ex21 ecutive agency receives a sufficient number of sealed bids or com22 petitive proposals from responsible sources to fulfill the Federal 

23 Government’s requirements (including performance and delivery 

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

25 of the property or service procured; 

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

27 and performance specifications; 

28 (D) making acquisition decisions consistent with all applicable 

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

30 responsibility for acquisition decisionmaking within the executive 

31 agency; 

32 (E) managing the direction of acquisition policy for the execu33 tive agency, including implementation of the unique acquisition 

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

35 (F) developing and maintaining an acquisition career manage36 ment program in the executive agency to ensure that there is an 

37 adequate professional workforce; and 

38 (G) as part of the strategic planning and performance evalua39 tion process required under section 306 of title 5 and sections 

40 1105(a)(28), 1115, 1116, and 9703 of title 31— 


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1 (i) assessing the requirements established for agency per2 sonnel regarding knowledge and skill in acquisition resources 

3 management and the adequacy of those requirements for fa4 cilitating the achievement of the performance goals estab5 lished for acquisition management; 

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

7 training, and professional development to rectify a deficiency 

8 in meeting those requirements; and 

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

10 progress made in improving acquisition management capa11 bility. 

12 (c) SENIOR PROCUREMENT EXECUTIVE.— 

13 (1) DESIGNATION.—The head of each executive agency shall des14 ignate a senior procurement executive. 

15 (2) RESPONSIBILITY.—The senior procurement executive is respon16 sible for management direction of the procurement system of the execu17 tive agency, including implementation of the unique procurement poli18 cies, regulations, and standards of the executive agency. 

19 (3) WHEN CHIEF ACQUISITION OFFICER APPOINTED OR DES20 IGNATED.—For an executive agency for which a Chief Acquisition Offi21 cer has been appointed or designated under subsection (a), the head 

22 of the executive agency shall— 

23 (A) designate the Chief Acquisition Officer as the senior pro24 curement executive for the executive agency; or 

25 (B) ensure that the senior procurement executive designated 

26 under paragraph (1) reports directly to the Chief Acquisition Offi27 cer without intervening authority. 

28 § 1703. Acquisition workforce 

29 (a) DESCRIPTION.—For purposes of this section, the acquisition work30 force of an agency consists of all employees serving in acquisition positions 

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

32 (b) APPLICABILITY.— 

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

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

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

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

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

38 (c) MANAGEMENT POLICIES.— 

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

40 (A) ESTABLISH POLICIES AND PROCEDURES.—After consulta41 tion with the Administrator, the head of each executive agency 


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1 shall establish policies and procedures for the effective manage2 ment (including accession, education, training, career development, 

3 and performance incentives) of the acquisition workforce of the 

4 agency. The development of acquisition workforce policies under 

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

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

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

8 executive agency shall ensure that, to the maximum extent prac9 ticable, acquisition workforce policies and procedures established 

10 are uniform in their implementation throughout the agency. 

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

12 policies to promote uniform implementation of this section by executive 

13 agencies, with due regard for differences in program requirements 

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

15 agency mission. The Administrator shall coordinate with the Deputy 

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

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

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

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

20 (Public Law 103–355, 108 Stat. 3351). The Administrator shall evalu21 ate the implementation of this section by executive agencies. 

22 (d) AUTHORITY AND RESPONSIBILITY OF SENIOR PROCUREMENT EXEC23 UTIVE.—Subject to the authority, direction, and control of the head of an 

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

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

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

27 that the policies of the head of the executive agency established in accord28 ance with this section are implemented throughout the agency. 

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

30 shall ensure that the heads of executive agencies collect and maintain stand31 ardized information on the acquisition workforce related to implementing 

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

33 shall conform to standards the Director of the Office of Personnel Manage34 ment establishes for the Central Personnel Data File. 

35 (f) CAREER DEVELOPMENT.— 

36 (1) CAREER PATHS.— 

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

38 ensure that appropriate career paths for personnel who desire to 

39 pursue careers in acquisition are identified in terms of the edu40 cation, training, experience, and assignments necessary for career 

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


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1 each executive agency shall make available information on those 

2 career paths. 

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

4 head of each executive agency shall identify the critical acquisition5 related duties and tasks in which, at minimum, employees of the 

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

7 performance grade levels. For this purpose, the head of the execu8 tive agency shall provide appropriate coverage of the critical duties 

9 and tasks identified by the Director of the Federal Acquisition In10 stitute. 

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

12 path, the head of each executive agency shall establish require13 ments for the completion of course work and related on-the-job 

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

15 career path. The head of each executive agency also shall encour16 age employees to maintain the currency of their acquisition knowl17 edge and generally enhance their knowledge of related acquisition 

18 management disciplines through academic programs and other 

19 self-developmental activities. 

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

21 shall provide for an enhanced system of incentives to encourage excel22 lence in the acquisition workforce that rewards performance of employ23 ees who contribute to achieving the agency’s performance goals. The 

24 system of incentives shall include provisions that— 

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

26 performance of personnel in the workforce contributes to achieving 

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

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

29 and 

30 (B) provide for consideration, in personnel evaluations and pro31 motion decisions, of the extent to which the performance of per32 sonnel in the workforce contributes to achieving the cost goals, 

33 schedule goals, and performance goals. 

34 (g) QUALIFICATION REQUIREMENTS.— 

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

36 shall— 

37 (A) establish qualification requirements, including education re38 quirements, for— 

39 (i) entry-level positions in the General Schedule Con40 tracting series (GS–1102); 


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1 (ii) senior positions in the General Schedule Contracting 

2 series (GS–1102); 

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

4 (GS–1105); and 

5 (iv) positions in other General Schedule series in which sig6 nificant acquisition-related functions are performed; and 

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

8 requirements shall apply to an individual serving in a position de9 scribed in subparagraph (A) at the time the requirements are es10 tablished. 

11 (2) RELATIONSHIP TO REQUIREMENTS APPLICABLE TO DEFENSE AC12 QUISITION WORKFORCE.—The Administrator shall establish qualifica13 tion requirements and make prescriptions under paragraph (1) that are 

14 comparable to those established for the same or equivalent positions 

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

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

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

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

19 The Director is deemed to have approved the requirement or prescrip20 tion if the Director does not disapprove the requirement or prescription 

21 within 30 days after receiving it. 

22 (h) EDUCATION AND TRAINING.— 

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

24 forth separately the funding levels requested for educating and training 

25 the acquisition workforce in the budget justification documents sub26 mitted in support of the President’s budget submitted to Congress 

27 under section 1105 of title 31. 

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

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

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

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

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

33 and training under this section may not be obligated for another pur34 pose. 

35 (i) TRAINING FUND.— 

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

37 the Federal acquisition workforce— 

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

39 Government acquisition of property and services associated with 

40 the changing roles of the Federal Government; and 


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

2 contribute effectively in the changing environment of the 21st cen3 tury. 

4 (2) ESTABLISHMENT AND MANAGEMENT OF FUND.—There is an ac5 quisition workforce training fund. The Administrator of General Serv6 ices shall manage the fund through the Federal Acquisition Institute 

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

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

9 General Services shall consult with the Administrator in managing the 

10 fund. 

11 (3) CREDITS TO FUND.—Five percent of the fees collected by execu12 tive agencies (other than the Department of Defense) under the fol13 lowing contracts shall be credited to the fund: 

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

15 into under sections 4103 and 4105 of this title. 

16 (B) Government-wide contracts for the acquisition of informa17 tion technology as defined in section 11101 of title 40 and multi18 agency acquisition contracts for that technology authorized by sec19 tion 11314 of title 40. 

20 (C) multiple-award schedule contracts entered into by the Ad21 ministrator of General Services. 

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

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

24 shall remit to the General Services Administration the amount required 

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

26 each quarter of the fiscal year. 

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

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

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

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

31 use the fees for acquisition workforce training. 

32 (6) AMOUNTS NOT TO BE USED FOR OTHER PURPOSES.—The Ad33 ministrator of General Services, through the Office of Federal 

34 Procurememt Policy, shall ensure that amounts collected for training 

35 under this subsection are not used for a purpose other than the pur36 pose specified in paragraph (2). 

37 (7) AMOUNTS ARE IN ADDITION TO OTHER AMOUNTS FOR EDU38 CATION AND TRAINING.—Amounts credited to the fund are in addition 

39 to amounts requested and appropriated for education and training re40 ferred to in subsection (h)(1). 


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1 (8) AVAILABILITY OF AMOUNTS.—Amounts credited to the fund re2 main available to be expended only in the fiscal year for which they 

3 are credited and the 2 succeeding fiscal years. 

4 (9) EXPIRATION.—This subsection ceases to be effective 5 years 

5 after November 24, 2003. 

6 (j) RECRUITMENT PROGRAM.— 

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

8 3304, 5333, and 5753 of title 5, the head of a department or agency 

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

10 determine, under regulations prescribed by the Office of Personnel 

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

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

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

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

15 (2) REPORT.—Not later than March 31, 2007, the Director of the 

16 Office of Personnel Management, in consultation with the Adminis17 trator, shall submit to Congress a report on the implementation of this 

18 subsection. The report shall include— 

19 (A) a list of the departments and agencies that exercised the au20 thority provided in this subsection and whether the exercise of the 

21 authority was carried out in accordance with the regulations of the 

22 Office of Personnel Management; 

23 (B) the Director’s assessment of the efficacy of the exercise of 

24 the authority provided in this subsection in attracting employees 

25 with unusually high qualifications to the acquisition workforce; 

26 and 

27 (C) recommendations the Director considers appropriate on 

28 whether the authority to carry out the program should be ex29 tended. 

30 (3) TERMINATION OF AUTHORITY.—The head of a department or 

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

32 under this subsection after September 30, 2007. 

33 § 1704. Advocates for competition 

34 (a) ESTABLISHMENT AND DESIGNATION.— 

35 (1) ESTABLISHMENT.—Each executive agency has an advocate for 

36 competition. 

37 (2) DESIGNATION.—The head of each executive agency shall— 

38 (A) designate for the executive agency and for each procuring 

39 activity of the executive agency one officer or employee serving in 

40 a position authorized for the executive agency on July 18, 1984 

41 (other than the senior procurement executive designated pursuant 


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1 to section 1702(c) of this title) to serve as the advocate for com2 petition; 

3 (B) not assign those officers or employees duties or responsibil4 ities that are inconsistent with the duties and responsibilities of 

5 the advocates for competition; and 

6 (C) provide those officers or employees with the staff or assist7 ance necessary to carry out the duties and responsibilities of the 

8 advocate for competition, such as individuals who are specialists 

9 in engineering, technical operations, contract administration, fi10 nancial management, supply management, and utilization of small 

11 and disadvantaged business concerns. 

12 (b) DUTIES AND FUNCTIONS.—The advocate for competition of an execu13 tive agency shall— 

14 (1) be responsible for challenging barriers to, and promoting full and 

15 open competition in, the procurement of property and services by the 

16 executive agency; 

17 (2) review the procurement activities of the executive agency; 

18 (3) identify and report to the senior procurement executive of the ex19 ecutive agency— 

20 (A) opportunities and actions taken to achieve full and open 

21 competition in the procurement activities of the executive agency; 

22 and 

23 (B) any condition or action which has the effect of unnecessarily 

24 restricting competition in the procurement actions of the executive 

25 agency; 

26 (4) prepare and transmit to the senior procurement executive an an27 nual report describing— 

28 (A) the advocate’s activities under this section; 

29 (B) new initiatives required to increase competition; and 

30 (C) remaining barriers to full and open competition; 

31 (5) recommend to the senior procurement executive— 

32 (A) goals and the plans for increasing competition on a fiscal 

33 year basis; and 

34 (B) a system of personal and organizational accountability for 

35 competition, which may include the use of recognition and awards 

36 to motivate program managers, contracting officers, and others in 

37 authority to promote competition in procurement programs; and 

38 (6) describe other ways in which the executive agency has empha39 sized competition in programs for procurement training and research. 

40 (c) RESPONSIBILITIES.—The advocate for competition for each procuring 

41 activity is responsible for promoting full and open competition, promoting 


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1 the acquisition of commercial items, and challenging barriers to acquisition, 

2 including unnecessarily restrictive statements of need, unnecessarily detailed 

3 specifications, and unnecessarily burdensome contract clauses. 

4 § 1705. Personnel evaluation 

5 The head of each executive agency subject to part C shall ensure, with 

6 respect to the employees of that agency whose primary duties and respon7 sibilities pertain to the award of contracts subject to the provisions of the 

8 Small Business and Federal Procurement Competition Enhancement Act of 

9 1984 (Public Law 98–577, 98 Stat. 3066), that the performance appraisal 

10 system applicable to those employees affords appropriate recognition to, 

11 among other factors, efforts to— 

12 (1) increase competition and achieve cost savings through the elimi13 nation of procedures that unnecessarily inhibit full and open competi14 tion; 

15 (2) further the purposes of the Small Business and Federal Procure16 ment Competition Enhancement Act of 1984 (Public Law 98–577, 98 

17 Stat. 3066) and the Defense Procurement Reform Act of 1984 (Public 

18 Law 98–525, title XII, 98 Stat. 2588); and 

19 (3) further other objectives and purposes of the Federal acquisition 

20 system authorized by law. 

21 § 1706. Publication of proposed regulations 

22 (a) COVERED POLICIES, REGULATIONS, PROCEDURES, AND FORMS.— 

23 (1) REQUIRED COMMENT PERIOD.—Except as provided in subsection 

24 (d), a procurement policy, regulation, procedure, or form (including an 

25 amendment or modification thereto) may not take effect until 60 days 

26 after it is published for public comment in the Federal Register pursu27 ant to subsection (b) if it— 

28 (A) relates to the expenditure of appropriated amounts; and 

29 (B)(i) has a significant effect beyond the internal operating pro30 cedures of the agency issuing the policy, regulation, procedure, or 

31 form; or 

32 (ii) has a significant cost or administrative impact on contrac33 tors or offerors. 

34 (2) EXCEPTION.—A policy, regulation, procedure, or form may take 

35 effect earlier than 60 days after the publication date when there are 

36 compelling circumstances for the earlier effective date, but the effective 

37 date may not be less than 30 days after the publication date. 

38 (b) PUBLICATION IN FEDERAL REGISTER AND COMMENT PERIOD.—Sub39 ject to subsection (c), the head of the agency shall have published in the 

40 Federal Register a notice of the proposed procurement policy, regulation, 

41 procedure, or form and provide for a public comment period for receiving 


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1 and considering the views of all interested parties on the proposal. The 

2 length of the comment period may not be less than 30 days. 

3 (c) CONTENTS OF NOTICE.—Notice of a proposed procurement policy, 

4 regulation, procedure, or form prepared for publication in the Federal Reg5 ister shall include— 

6 (1) the text of the proposal or, if it is impracticable to publish the 

7 full text of the proposal, a summary of the proposal and a statement 

8 specifying the name, address, and telephone number of the officer or 

9 employee of the executive agency from whom the full text may be ob10 tained; and 

11 (2) a request for interested parties to submit comments on the pro12 posal and the name and address of the officer or employee of the Fed13 eral Government designated to receive the comments. 

14 (d) WAIVER.—The requirements of subsections (a) and (b) may be waived 

15 by the officer authorized to issue a procurement policy, regulation, proce16 dure, or form if urgent and compelling circumstances make compliance with 

17 the requirements impracticable. 

18 (e) EFFECTIVENESS OF POLICY, REGULATION, PROCEDURE, OR FORM.— 

19 (1) TEMPORARY BASIS.—A procurement policy, regulation, proce20 dure, or form for which the requirements of subsections (a) and (b) 

21 are waived under subsection (d) is effective on a temporary basis if— 

22 (A) a notice of the policy, regulation, procedure, or form is pub23 lished in the Federal Register and includes a statement that the 

24 policy, regulation, procedure, or form is temporary; and 

25 (B) provision is made for a public comment period of 30 days 

26 beginning on the date on which the notice is published. 

27 (2) FINAL POLICY, REGULATION, PROCEDURE, OR FORM.—After con28 sidering the comments received, the head of the agency waiving the re29 quirements of subsections (a) and (b) under subsection (d) may issue 

30 the final procurement policy, regulation, procedure, or form. 

31 § 1707. Procurement notice 

32 (a) NOTICE REQUIREMENT.—Except as provided in subsection (b)— 

33 (1) an executive agency intending to solicit bids or proposals for a 

34 contract for property or services for a price expected to exceed 

35 $10,000, but not to exceed $25,000, shall post, for not less than 10 

36 days, in a public place at the contracting office issuing the solicitation 

37 a notice of solicitation described in subsection (c); 

38 (2) an executive agency shall publish a notice of solicitation described 

39 in subsection (c) if the agency intends to— 

40 (A) solicit bids or proposals for a contract for property or serv41 ices for a price expected to exceed $25,000; or 


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1 (B) place an order, expected to exceed $25,000, under a basic 

2 agreement, basic ordering agreement, or similar arrangement; and 

3 (3) an executive agency awarding a contract for property or services 

4 for a price exceeding $25,000, or placing an order exceeding $25,000 

5 under a basic agreement, basic ordering agreement, or similar arrange6 ment, shall furnish for publication a notice announcing the award or 

7 order if there is likely to be a subcontract under the contract or order. 

8 (b) EXEMPTIONS.— 

9 (1) IN GENERAL.—A notice is not required under subsection (a) if— 

10 (A) the proposed procurement is for an amount not greater 

11 than the simplified acquisition threshold and is to be conducted 

12 by— 

13 (i) using widespread electronic public notice of the solicita14 tion in a form that allows convenient and universal user ac15 cess through a single, Government-wide point of entry; and 

16 (ii) permitting the public to respond to the solicitation elec17 tronically; 

18 (B) the notice would disclose the executive agency’s needs and 

19 disclosure would compromise national security; 

20 (C) the proposed procurement would result from acceptance 

21 of— 

22 (i) an unsolicited proposal that demonstrates a unique and 

23 innovative research concept and publication of a notice of the 

24 unsolicited research proposal would disclose the originality of 

25 thought or innovativeness of the proposal or would disclose 

26 proprietary information associated with the proposal; or 

27 (ii) a proposal submitted under section 9 of the Small 

28 Business Act (15 U.S.C. 638); 

29 (D) the procurement is made against an order placed under a 

30 requirements contract, a task order contract, or a delivery order 

31 contract; 

32 (E) the procurement is made for perishable subsistence supplies; 

33 (F) the procurement is for utility services, other than tele34 communication services, and only one source is available; 

35 (G) the procurement is for the services of an expert for use in 

36 any litigation or dispute (including any reasonably foreseeable liti37 gation or dispute) involving the Federal Government in a trial, 

38 hearing, or proceeding before a court, administrative tribunal, or 

39 agency, or in any part of an alternative dispute resolution process, 

40 whether or not the expert is expected to testify; or 


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1 (H) the procurement is by the Secretary of Homeland Security 

2 pursuant to the special procedures provided in section 833(c) of 

3 the Homeland Security Act of 2002 (6 U.S.C. 393(c)). 

4 (2) CERTAIN PROCUREMENTS.—The requirements of subsection 

5 (a)(2) do not apply to a procurement— 

6 (A) under conditions described in paragraph (2), (3), (4), (5), 

7 or (7) of section 3303(a) of this title or paragraph (2), (3), (4), 

8 (5), or (7) of section 2304(c) of title 10; or 

9 (B) for which the head of the executive agency makes a deter10 mination in writing, after consultation with the Administrator and 

11 the Administrator of the Small Business Administration, that it is 

12 not appropriate or reasonable to publish a notice before issuing a 

13 solicitation. 

14 (3) IMPLEMENTATION CONSISTENT WITH INTERNATIONAL AGREE15 MENTS.—Paragraph (1)(A) shall be implemented in a manner con16 sistent with applicable international agreements. 

17 (c) CONTENTS OF NOTICE.—Each notice of solicitation required by para18 graph (1) or (2) of subsection (a) shall include— 

19 (1) an accurate description of the property or services to be con20 tracted for, which description— 

21 (A) shall not be unnecessarily restrictive of competition; and 

22 (B) shall include, as appropriate, the agency nomenclature, Na23 tional Stock Number or other part number, and a brief description 

24 of the item’s form, fit, or function, physical dimensions, predomi25 nant material of manufacture, or similar information that will as26 sist a prospective contractor to make an informed business judg27 ment as to whether a copy of the solicitation should be requested; 

28 (2) provisions that— 

29 (A)(i) state whether the technical data required to respond to 

30 the solicitation will not be furnished as part of the solicitation; and 

31 (ii) identify the source in the Federal Government, if any, from 

32 which the technical data may be obtained; and 

33 (B)(i) state whether an offeror or its product or service must 

34 meet a qualification requirement in order to be eligible for award; 

35 and 

36 (ii) if so, identify the office from which the qualification require37 ment may be obtained; 

38 (3) the name, business address, and telephone number of the con39 tracting officer; 

40 (4) a statement that all responsible sources may submit a bid, pro41 posal, or quotation (as appropriate) that the agency shall consider; 


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1 (5) in the case of a procurement using procedures other than com2 petitive procedures, a statement of the reason justifying the use of 

3 those procedures and the identity of the intended source; and 

4 (6) in the case of a contract in an amount estimated to be greater 

5 than $25,000 but not greater than the simplified acquisition threshold, 

6 or a contract for the procurement of commercial items using special 

7 simplified procedures— 

8 (A) a description of the procedures to be used in awarding the 

9 contract; and 

10 (B) a statement specifying the periods for prospective offerors 

11 and the contracting officer to take the necessary preaward and 

12 award actions. 

13 (d) ELECTRONIC PUBLICATION OF NOTICE OF SOLICITATION, AWARD, OR

14 ORDER.—A notice of solicitation, award, or order required to be published 

15 under subsection (a) shall be published by electronic means. The notice 

16 must be electronically accessible in a form that allows convenient and uni17 versal user access through the single Government-wide point of entry des18 ignated in the Federal Acquisition Regulation. 

19 (e) TIME LIMITATIONS.— 

20 (1) ISSUING NOTICE OF SOLICITATION AND ESTABLISHING DEAD21 LINE FOR SUBMITTING BIDS AND PROPOSALS.—An executive agency re22 quired by subsection (a)(2) to publish a notice of solicitation may not— 

23 (A) issue the solicitation earlier than 15 days after the date on 

24 which the notice is published; or 

25 (B) in the case of a contract or order expected to be greater 

26 than the simplified acquisition threshold, establish a deadline for 

27 the submission of all bids or proposals in response to the notice 

28 required by subsection (a)(2) that— 

29 (i) in the case of a solicitation for research and develop30 ment, is earlier than 45 days after the date the notice re31 quired for a bid or proposal for a contract described in sub32 section (a)(2)(A) is published; 

33 (ii) in the case of an order under a basic agreement, basic 

34 ordering agreement, or similar arrangement, is earlier than 

35 30 days after the date the notice required for an order de36 scribed in subsection (a)(2)(B) is published; or 

37 (iii) in any other case, is earlier than 30 days after the 

38 date the solicitation is issued. 

39 (2) ESTABLISHING DEADLINE WHEN NONE PROVIDED BY STAT40 UTE.—An executive agency shall establish a deadline for the submis41 sion of all bids or proposals in response to a solicitation for which a 


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1 deadline is not provided by statute. Each deadline for the submission 

2 of offers shall afford potential offerors a reasonable opportunity to re3 spond. 

4 (3) FLEXIBLE DEADLINES.—The Administrator shall prescribe regu5 lations defining limited circumstances in which flexible deadlines can be 

6 used under paragraph (1) for the issuance of solicitations and the sub7 mission of bids or proposals for the procurement of commercial items. 

8 (f) CONSIDERATION OF CERTAIN TIMELY RECEIVED OFFERS.—An exec9 utive agency intending to solicit offers for a contract for which a notice of 

10 solicitation is required to be posted under subsection (a)(1) shall ensure that 

11 contracting officers consider each responsive offer timely received from an 

12 offeror. 

13 (g) AVAILABILITY OF COMPLETE SOLICITATION PACKAGE AND PAYMENT

14 OF FEE.—An executive agency shall make available to a business concern, 

15 or the authorized representative of a concern, the complete solicitation pack16 age for any on-going procurement announced pursuant to a notice of solici17 tation under subsection (a). An executive agency may require the payment 

18 of a fee, not exceeding the actual cost of duplication, for a copy of the pack19 age. 

20 § 1708. Contracting functions performed by Federal per21 sonnel 

22 (a) COVERED PERSONNEL.—Personnel referred to in subsection (b) are— 

23 (1) an employee, as defined in section 2105 of title 5; 

24 (2) a member of the armed forces; and 

25 (3) an individual assigned to a Federal agency pursuant to sub26 chapter VI of chapter 33 of title 5. 

27 (b) LIMITATION ON PAYMENT FOR ADVISORY AND ASSISTANCE SERV28 ICES.—No individual who is not an individual described in subsection (a) 

29 may be paid by an executive agency for services to conduct evaluations or 

30 analyses of any aspect of a proposal submitted for an acquisition unless per31 sonnel described in subsection (a) with adequate training and capabilities 

32 to perform the evaluations and analyses are not readily available in the 

33 agency or another Federal agency. When administering this subsection, the 

34 head of each executive agency shall determine in accordance with standards 

35 and procedures prescribed in the Federal Acquisition Regulation whether— 

36 (1) a sufficient number of personnel described in subsection (a) in 

37 the agency or another Federal agency are readily available to perform 

38 a particular evaluation or analysis for the head of the executive agency 

39 making the determination; and 

40 (2) the readily available personnel have the training and capabilities 

41 necessary to perform the evaluation or analysis. 


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1 (c) CERTAIN RELATIONSHIP NOT AFFECTED.—This section does not af2 fect the relationship between the Federal Government and a Federally fund3 ed research and development center. 

4 § 1709. 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 § 1710. 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 3303(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 SYSTEM ENTRY OF INFORMATION.—Infor40 mation included in the record established and maintained under subsection 

41 (a) shall be transmitted to the Administrator of General Services and shall 


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1 be entered in the Federal Procurement Data System referred to in section 

2 1122(a)(4) of this title. 

3 § 1711. Procurement data 

4 (a) DEFINITIONS.—In this section: 

5 (1) QUALIFIED HUBZONE SMALL BUSINESS CONCERN.—The term 

6 ‘‘qualified HUBZone small business concern’’ has the meaning given 

7 that term in section 3(p) of the Small Business Act (15 U.S.C. 

8 632(p)). 

9 (2) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY SO10 CIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS.—The term 

11 ‘‘small business concern owned and controlled by socially and economi12 cally disadvantaged individuals’’ has the meaning given that term in 

13 section 8(d) of the Small Business Act (15 U.S.C. 637(d)). 

14 (3) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY

15 WOMEN.—The term ‘‘small business concern owned and controlled by 

16 women’’ has the meaning given that term in section 8(d) of the Small 

17 Business Act (15 U.S.C. 637(d)) and section 204 of the Women’s 

18 Business Ownership Act of 1988 (Public Law 100–533, 102 Stat. 

19 2692). 

20 (b) REPORTING.—Each Federal agency shall report to the Office of Fed21 eral Procurement Policy the number of qualified HUBZone small business 

22 concerns, the number of small businesses owned and controlled by women, 

23 and the number of small business concerns owned and controlled by socially 

24 and economically disadvantaged individuals, by gender, that are first time 

25 recipients of contracts from the agency. The Office shall take appropriate 

26 action to ascertain, for each fiscal year, the number of those small busi27 nesses that have newly entered the Federal market. 

28 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. 

29 § 1901. Simplified acquisition procedures 

30 (a) WHEN PROCEDURES ARE TO BE USED.—To promote efficiency and 

31 economy in contracting and to avoid unnecessary burdens for agencies and 

32 contractors, the Federal Acquisition Regulation shall provide for special 

33 simplified procedures for purchases of property and services for amounts— 

34 (1) not greater than the simplified acquisition threshold; and 


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1 (2) greater than the simplified acquisition threshold but not greater 

2 than $5,000,000 for which the contracting officer reasonably expects, 

3 based on the nature of the property or services sought and on market 

4 research, that offers will include only commercial items. 

5 (b) PROHIBITION ON DIVIDING PURCHASES.—A proposed purchase or 

6 contract for an amount above the simplified acquisition threshold may not 

7 be divided into several purchases or contracts for lesser amounts to use the 

8 simplified acquisition procedures required by subsection (a). 

9 (c) PROMOTION OF COMPETITION REQUIRED.—When using simplified ac10 quisition procedures, the head of an executive agency shall promote competi11 tion to the maximum extent practicable. 

12 (d) CONSIDERATION OF OFFERS TIMELY RECEIVED.—The simplified ac13 quisition procedures contained in the Federal Acquisition Regulation shall 

14 include a requirement that a contracting officer consider each responsive 

15 offer timely received from an eligible offeror. 

16 (e) REPORT.—Until October 1, 2004, procuring activities shall continue 

17 to report under section 1710(d) of this title procurement awards of at least 

18 $25,000, but less than $100,000, in conformity with the procedures for the 

19 reporting of a contract award greater than $25,000 that were in effect on 

20 October 1, 1992. 

21 (f) SPECIAL RULES FOR COMMERCIAL ITEMS.—The Federal Acquisition 

22 Regulation shall provide that an executive agency using special simplified 

23 procedures to purchase commercial items— 

24 (1) shall publish a notice in accordance with section 1707 of this title 

25 and, as provided in section 1707(c)(4) of this title, permit all respon26 sible sources to submit a bid, proposal, or quotation (as appropriate) 

27 that the agency shall consider; 

28 (2) may not conduct the purchase on a sole source basis unless the 

29 need to do so is justified in writing and approved in accordance with 

30 section 2304(f) of title 10 or section 3303(d) of this title, as applicable; 

31 and 

32 (3) shall include in the contract file a written description of the pro33 cedures used in awarding the contract and the number of offers re34 ceived. 

35 § 1902. Procedures applicable to purchases below micro-pur36 chase threshold 

37 (a) DEFINITION.—For purposes of this section, the micro-purchase 

38 threshold is $2,500. 

39 (b) COMPLIANCE WITH CERTAIN REQUIREMENTS AND NONAPPLICA40 BILITY OF CERTAIN AUTHORITY.— 


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1 (1) COMPLIANCE WITH CERTAIN REQUIREMENTS.—The head of each 

2 executive agency shall ensure that procuring activities of that agency, 

3 when awarding a contract with a price exceeding the micro-purchase 

4 threshold, comply with the requirements of section 8(a) of the Small 

5 Business Act (15 U.S.C. 637(a)), section 2323 of title 10, and section 

6 7102 of the Federal Acquisition Streamlining Act of 1994 (Public Law 

7 103–355, 15 U.S.C. 644 note). 

8 (2) NONAPPLICABILITY OF CERTAIN AUTHORITY.—The authority 

9 under part 13.106(a)(1) of the Federal Acquisition Regulation (48 

10 C.F.R. 13.106(a)(1)), as in effect on November 18, 1993, to make pur11 chases without securing competitive quotations does not apply to a pur12 chase with a price exceeding the micro-purchase threshold. 

13 (c) NONAPPLICABILITY OF CERTAIN PROVISIONS.—An executive agency 

14 purchase with an anticipated value of the micro-purchase threshold or less 

15 is not subject to section 15(j) of the Small Business Act (15 U.S.C. 644(j)) 

16 and chapter 83 of this title. 

17 (d) PURCHASES WITHOUT COMPETITIVE QUOTATIONS.—A purchase not 

18 greater than $2,500 may be made without obtaining competitive quotations 

19 if an employee of an executive agency or a member of the armed forces, 

20 authorized to do so, determines that the price for the purchase is reason21 able. 

22 (e) EQUITABLE DISTRIBUTION.—Purchases not greater than $2,500 shall 

23 be distributed equitably among qualified suppliers. 

24 (f) IMPLEMENTATION THROUGH FEDERAL ACQUISITION REGULATION.— 

25 This section shall be implemented through the Federal Acquisition Regula26 tion. 

27 § 1903. Special emergency procurement authority 

28 (a) APPLICABILITY.—The authorities provided in subsections (b) and (c) 

29 apply with respect to a procurement of property or services by or for an 

30 executive agency that the head of the executive agency determines are to 

31 be used— 

32 (1) in support of a contingency operation (as defined in section 

33 101(a) of title 10); or 

34 (2) to facilitate the defense against or recovery from nuclear, biologi35 cal, chemical, or radiological attack against the United States. 

36 (b) INCREASED THRESHOLDS AND LIMITATION.—For a procurement to 

37 which this section applies under subsection (a)— 

38 (1) the amount specified in section 1902(a), (d), and (e) of this title 

39 shall be deemed to be— 

40 (A) $15,000 in the case of a contract to be awarded and per41 formed, or purchase to be made, in the United States; and 


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1 (B) $25,000 in the case of a contract to be awarded and per2 formed, or purchase to be made, outside the United States; 

3 (2) the term ‘‘simplified acquisition threshold’’ means— 

4 (A) $250,000 in the case of a contract to be awarded and per5 formed, or purchase to be made, in the United States; and 

6 (B) $1,000,000 in the case of a contract to be awarded and per7 formed, or purchase to be made, outside the United States; and 

8 (3) the $5,000,000 limitation in sections 1901(a)(2) and 3304(a)(2) 

9 of this title and section 2304(g)(1)(B) of title 10 is deemed to be 

10 $10,000,000. 

11 (c) AUTHORITY TO TREAT PROPERTY OR SERVICE AS COMMERCIAL

12 ITEM.— 

13 (1) IN GENERAL.—The head of an executive agency carrying out a 

14 procurement of property or a service to which this section applies under 

15 subsection (a)(2) may treat the property or service as a commercial 

16 item for the purpose of carrying out the procurement. 

17 (2) CERTAIN CONTRACTS NOT EXEMPT FROM STANDARDS OR RE18 QUIREMENTS.—A contract in an amount of more than $15,000,000 

19 that is awarded on a sole source basis for an item or service treated 

20 as a commercial item under paragraph (1) is not exempt from— 

21 (A) cost accounting standards prescribed under section 1502 of 

22 this title; or 

23 (B) cost or pricing data requirements (commonly referred to as 

24 truth in negotiating) under chapter 35 of this title and section 

25 2306a of title 10. 

26 § 1904. Certain transactions for defense against attack 

27 (a) AUTHORITY.— 

28 (1) IN GENERAL.—The head of an executive agency that engages in 

29 basic research, applied research, advanced research, and development 

30 projects that are necessary to the responsibilities of the executive agen31 cy in the field of research and development and have the potential to 

32 facilitate defense against or recovery from terrorism or nuclear, biologi33 cal, chemical, or radiological attack may exercise the same authority 

34 (subject to the same restrictions and conditions) with respect to the re35 search and projects as the Secretary of Defense may exercise under 

36 section 2371 of title 10, except for subsections (b) and (f) of section 

37 2371. 

38 (2) PROTOTYPE PROJECTS.—The head of an executive agency, under 

39 the authority of paragraph (1), may carry out prototype projects that 

40 meet the requirements of paragraph (1) in accordance with the require41 ments and conditions provided for carrying out prototype projects 


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1 under section 845 of the National Defense Authorization Act for Fiscal 

2 Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note), including 

3 that, to the maximum extent practicable, competitive procedures shall 

4 be used when entering into agreements to carry out projects under sec5 tion 845(a) of that Act and that the period of authority to carry out 

6 projects under section 845(a) of that Act terminates as provided in sec7 tion 845(g) of that Act. 

8 (3) APPLICATION OF REQUIREMENTS AND CONDITIONS.—In applying 

9 the requirements and conditions of section 845 of that Act under this 

10 subsection— 

11 (A) section 845(c) of that Act shall apply with respect to proto12 type projects carried out under paragraph (2); and 

13 (B) the Director of the Office of Management and Budget shall 

14 perform the functions of the Secretary of Defense under section 

15 845(d) of that Act. 

16 (4) APPLICABILITY TO SELECTED EXECUTIVE AGENCIES.— 

17 (A) OFFICE OF MANAGEMENT AND BUDGET.—The head of an 

18 executive agency may exercise authority under this subsection for 

19 a project only if authorized by the Director of the Office of Man20 agement and Budget. 

21 (B) DEPARTMENT OF HOMELAND SECURITY.—Authority under 

22 this subsection does not apply to the Secretary of Homeland Secu23 rity while section 831 of the Homeland Security Act of 2002 (6 

24 U.S.C. 391) is in effect. 

25 (b) REGULATIONS.—The Director of the Office of Management and 

26 Budget shall prescribe regulations to carry out this section. No transaction 

27 may be conducted under the authority of this section before the regulations 

28 take effect. 

29 (c) ANNUAL REPORT.—The annual report of the head of an executive 

30 agency that is required under section 2371(h) of title 10, as applied to the 

31 head of the executive agency by subsection (a), shall be submitted to the 

32 Committee on Homeland Security and Governmental Affairs of the Senate 

33 and the Committee on Government Reform of the House of Representatives. 

34 (d) TERMINATION OF AUTHORITY.—The authority to carry out trans35 actions under subsection (a) terminates on September 30, 2008. 

36 § 1905. List of laws inapplicable to contracts or subcontracts 

37 not greater than simplified acquisition threshold 

38 (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning 

39 given that term in section 1301 of this title. 

40 (b) INCLUSION IN FEDERAL ACQUISITION REGULATION.— 


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1 (1) IN GENERAL.—The Federal Acquisition Regulation shall include 

2 a list of provisions of law that are inapplicable to contracts or sub3 contracts in amounts not greater than the simplified acquisition thresh4 old. A provision of law properly included on the list pursuant to para5 graph (2) does not apply to contracts or subcontracts in amounts not 

6 greater than the simplified acquisition threshold that are made by an 

7 executive agency. This section does not render a provision of law not 

8 included on the list inapplicable to contracts and subcontracts in 

9 amounts not greater than the simplified acquisition threshold. 

10 (2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law 

11 described in subsection (c) that is enacted after October 13, 1994, shall 

12 be included on the list of inapplicable provisions of laws required by 

13 paragraph (1) unless the Council makes a written determination that 

14 it would not be in the best interest of the Federal Government to ex15 empt contracts or subcontracts in amounts not greater than the sim16 plified acquisition threshold from the applicability of the provision. 

17 (c) COVERED LAW.—A provision of law referred to in subsection (b)(2) 

18 is a provision of law that the Council determines sets forth policies, proce19 dures, requirements, or restrictions for the procurement of property or serv20 ices by the Federal Government, except for a provision of law that— 

21 (1) provides for criminal or civil penalties; or 

22 (2) specifically refers to this section and provides that, notwith23 standing this section, it shall be applicable to contracts or subcontracts 

24 in amounts not greater than the simplified acquisition threshold. 

25 (d) PETITION.—A person may petition the Administrator to take appro26 priate action when a provision of law described in subsection (c) is not in27 cluded on the list of inapplicable provisions of law as required by subsection 

28 (b) and the Council has not made a written determination pursuant to sub29 section (b)(2). The Administrator shall revise the Federal Acquisition Regu30 lation to include the provision on the list of inapplicable provisions of law 

31 unless the Council makes a determination pursuant to subsection (b)(2) 

32 within 60 days after the petition is received. 

33 § 1906. List of laws inapplicable to procurements of commer34 cial items 

35 (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning 

36 given that term in section 1301 of this title. 

37 (b) CONTRACTS.— 

38 (1) INCLUSION IN FEDERAL ACQUISITION REGULATION.—The Fed39 eral Acquisition Regulation shall include a list of provisions of law that 

40 are inapplicable to contracts for the procurement of commercial items. 

41 A provision of law properly included on the list pursuant to paragraph 


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1 (2) does not apply to purchases of commercial items by an executive 

2 agency. This section does not render a provision of law not included 

3 on the list inapplicable to contracts for the procurement of commercial 

4 items. 

5 (2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law 

6 described in subsection (d) that is enacted after October 13, 1994, 

7 shall be included on the list of inapplicable provisions of law required 

8 by paragraph (1) unless the Council makes a written determination 

9 that it would not be in the best interest of the Federal Government 

10 to exempt contracts for the procurement of commercial items from the 

11 applicability of the provision. 

12 (c) SUBCONTRACTS.— 

13 (1) DEFINITION.—In this subsection, the term ‘‘subcontract’’ in14 cludes a transfer of commercial items between divisions, subsidiaries, 

15 or affiliates of a contractor or subcontractor. 

16 (2) INCLUSION IN FEDERAL ACQUISITION REGULATION.—The Fed17 eral Acquisition Regulation shall include a list of provisions of law that 

18 are inapplicable to subcontracts under a contract or subcontract for the 

19 procurement of commercial items. A provision of law properly included 

20 on the list pursuant to paragraph (3) does not apply to those sub21 contracts. This section does not render a provision of law not included 

22 on the list inapplicable to subcontracts under a contract for the pro23 curement of commercial items. 

24 (3) PROVISIONS TO BE EXCLUDED FROM LIST.—A provision of law 

25 described in subsection (d) shall be included on the list of inapplicable 

26 provisions of law required by paragraph (2) unless the Council makes 

27 a written determination that it would not be in the best interest of the 

28 Federal Government to exempt subcontracts under a contract for the 

29 procurement of commercial items from the applicability of the provi30 sion. 

31 (4) WAIVER NOT AUTHORIZED.—This subsection does not authorize 

32 the waiver of the applicability of any provision of law with respect to 

33 any subcontract under a contract with a prime contractor reselling or 

34 distributing commercial items of another contractor without adding 

35 value. 

36 (d) COVERED LAW.—A provision of law referred to in subsections (b)(2) 

37 and (c) is a provision of law that the Council determines sets forth policies, 

38 procedures, requirements, or restrictions for the procurement of property or 

39 services by the Federal Government, except for a provision of law that— 

40 (1) provides for criminal or civil penalties; or 


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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 commercial items. 

4 (e) PETITION.—A person may petition the Administrator to take appro5 priate action when a provision of law described in subsection (d) is not in6 cluded on the list of inapplicable provisions of law as required by subsection 

7 (b) or (c) and the Council has not made a written determination pursuant 

8 to subsection (b)(2) or (c)(3). The Administrator shall revise the Federal 

9 Acquisition Regulation to include the provision on the list of inapplicable 

10 provisions of law unless the Council makes a determination pursuant to sub11 section (b)(2) or (c)(3) within 60 days after the petition is received. 

12 § 1907. List of laws inapplicable to procurements of commer13 cially available off-the-shelf items 

14 (a) INCLUSION IN FEDERAL ACQUISITION REGULATION.— 

15 (1) IN GENERAL.—The Federal Acquisition Regulation shall include 

16 a list of provisions of law that are inapplicable to contracts for the pro17 curement of commercially available off-the-shelf items. A provision of 

18 law properly included on the list pursuant to paragraph (2) does not 

19 apply to contracts for the procurement of commercially available off20 the-shelf items. This section does not render a provision of law not in21 cluded on the list inapplicable to contracts for the procurement of com22 mercially available off-the-shelf items. 

23 (2) LAWS TO BE INCLUDED.—A provision of law described in sub24 section (b) shall be included on the list of inapplicable provisions of law 

25 required by paragraph (1) unless the Administrator makes a written 

26 determination that it would not be in the best interest of the Federal 

27 Government to exempt contracts for the procurement of commercially 

28 available off-the-shelf items from the applicability of the provision. 

29 (3) OTHER AUTHORITIES OR RESPONSIBILITIES NOT AFFECTED.— 

30 This section does not modify, supersede, impair, or restrict authorities 

31 or responsibilities under— 

32 (A) section 15 of the Small Business Act (15 U.S.C. 644); or 

33 (B) bid protest procedures developed under the authority of— 

34 (i) subchapter V of chapter 35 of title 31; 

35 (ii) section 2305(e) and (f) of title 10; or 

36 (iii) sections 3706 and 3707 of this title. 

37 (b) COVERED LAW.—Except as provided in subsection (a)(3), a provision 

38 of law referred to in subsection (a)(1) is a provision of law that the Admin39 istrator determines imposes Federal Government-unique policies, proce40 dures, requirements, or restrictions for the procurement of property or serv41 ices on persons whom the Federal Government has awarded contracts for 


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1 the procurement of commercially available off-the-shelf items, except for a 

2 provision of law that— 

3 (1) provides for criminal or civil penalties; or 

4 (2) specifically refers to this section and provides that, notwith5 standing this section, it shall be applicable to contracts for the procure6 ment of commercially available off-the-shelf items. 

7 § 1908. Inflation adjustment of acquisition-related dollar 

8 thresholds 

9 (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning 

10 given that term in section 1301 of this title. 

11 (b) APPLICATION.— 

12 (1) IN GENERAL.—Except as provided in paragraph (2), the require13 ment for adjustment under subsection (c) applies to a dollar threshold 

14 that is specified in law as a factor in defining the scope of the applica15 bility of a policy, procedure, requirement, or restriction provided in that 

16 law to the procurement of property or services by an executive agency, 

17 as the Council determines. 

18 (2) EXCEPTIONS.—Subsection (c) does not apply to dollar thresh19 olds— 

20 (A) in chapter 67 of this title; 

21 (B) in sections 3141 to 3144, 3146, and 3147 of title 40; or 

22 (C) the United States Trade Representative establishes pursu23 ant to title III of the Trade Agreements Act of 1979 (19 U.S.C. 

24 2511 et seq.). 

25 (3) RELATIONSHIP TO OTHER INFLATION ADJUSTMENT AUTHORI26 TIES.—This section supersedes the applicability of other provisions of 

27 law that provide for the adjustment of a dollar threshold that is adjust28 able under this section. 

29 (c) REQUIREMENT FOR PERIODIC ADJUSTMENT.— 

30 (1) BASELINE CONSTANT DOLLAR VALUE.—For purposes of para31 graph (2), the baseline constant dollar value for a dollar threshold— 

32 (A) in effect on October 1, 2000, that was first specified in a 

33 law that took effect on or before October 1, 2000, is the October 

34 1, 2000, constant dollar value of that dollar threshold; and 

35 (B) specified in a law that takes effect after October 1, 2000, 

36 is the constant dollar value of that threshold as of the effective 

37 date of that dollar threshold pursuant to that law. 

38 (2) ADJUSTMENT.—On October 1 of each year evenly divisible by 5, 

39 the Council shall adjust each acquisition-related dollar threshold pro40 vided by law, as described in subsection (b)(1), to the baseline constant 

41 dollar value of that threshold. 


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1 (3) EXCLUSIVE MEANS OF ADJUSTMENT.—A dollar threshold adjust2 able under this section shall be adjusted only as provided in this sec3 tion. 

4 (d) PUBLICATION.—The Council shall publish a notice of the adjusted 

5 dollar thresholds under this section in the Federal Register. The thresholds 

6 take effect on the date of publication. 

7 (e) CALCULATION.—An adjustment under this section shall be— 

8 (1) calculated on the basis of changes in the Consumer Price Index 

9 for all-urban consumers published monthly by the Secretary of Labor; 

10 and 

11 (2) rounded, in the case of a dollar threshold that on the day before 

12 the adjustment is— 

13 (A) less than $10,000, to the nearest $500; 

14 (B) not less than $10,000, but less than $100,000, to the near15 est $5,000; 

16 (C) not less than $100,000, but less than $1,000,000, to the 

17 nearest $50,000; and 

18 (D) $1,000,000 or more, to the nearest $500,000. 

19 (f) PETITION FOR INCLUSION OF OMITTED THRESHOLD.— 

20 (1) PETITION SUBMITTED TO ADMINISTRATOR.—A person may re21 quest adjustment of a dollar threshold adjustable under this section 

22 that is not included in a notice of adjustment published under sub23 section (d) by submitting a petition for adjustment to the Adminis24 trator. 

25 (2) ACTIONS OF ADMINISTRATOR.—On receipt of a petition for ad26 justment of a dollar threshold under paragraph (1), the Adminis27 trator— 

28 (A) shall determine, in writing, whether the dollar threshold is 

29 required to be adjusted under this section; and 

30 (B) on determining that it should be adjusted, shall publish in 

31 the Federal Register a revised notice of the adjustment dollar 

32 thresholds under this section that includes the adjustment of the 

33 dollar threshold covered by the petition. 

34 (3) EFFECTIVE DATE OF ADJUSTMENT BY PETITION.—The adjust35 ment of a dollar threshold pursuant to a petition under this subsection 

36 takes effect on the date the revised notice adding the adjustment under 

37 paragraph (2)(B) is published. 

38 CHAPTER 21—RESTRICTIONS ON OBTAINING AND 

39 DISCLOSING CERTAIN INFORMATION 

Sec. 

2101. Definitions. 

2102. Prohibitions on disclosing and obtaining procurement information. 


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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. 

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 of this title with respect to procurements subject to that 

17 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 amounts. 

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. 


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1 (6) PROTEST.—The term ‘‘protest’’ means a written objection by an 

2 interested party to the award or proposed award of a Federal agency 

3 procurement contract, pursuant to subchapter V of chapter 35 of title 

4 31. 

5 (7) SOURCE SELECTION INFORMATION.—The term ‘‘source selection 

6 information’’ means any of the following information prepared for use 

7 by a Federal agency to evaluate a bid or proposal to enter into a Fed8 eral agency procurement contract, if that information previously has 

9 not been made available to the public or disclosed publicly: 

10 (A) Bid prices submitted in response to a Federal agency solici11 tation for sealed bids, or lists of those bid prices before public bid 

12 opening. 

13 (B) Proposed costs or prices submitted in response to a Federal 

14 agency solicitation, or lists of those proposed costs or prices. 

15 (C) Source selection plans. 

16 (D) Technical evaluation plans. 

17 (E) Technical evaluations of proposals. 

18 (F) Cost or price evaluations of proposals. 

19 (G) Competitive range determinations that identify proposals 

20 that have a reasonable chance of being selected for award of a 

21 contract. 

22 (H) Rankings of bids, proposals, or competitors. 

23 (I) Reports and evaluations of source selection panels, boards, 

24 or advisory councils. 

25 (J) Other information marked as ‘‘source selection information’’ 

26 based on a case-by-case determination by the head of the agency, 

27 the head’s designee, or the contracting officer that its disclosure 

28 would jeopardize the integrity or successful completion of the Fed29 eral agency procurement to which the information relates. 

30 § 2102. Prohibitions on disclosing and obtaining procure31 ment information 

32 (a) PROHIBITION ON DISCLOSING PROCUREMENT INFORMATION.— 

33 (1) IN GENERAL.—Except as provided by law, a person described in 

34 paragraph (3) shall not knowingly disclose contractor bid or proposal 

35 information or source selection information before the award of a Fed36 eral agency procurement contract to which the information relates. 

37 (2) EMPLOYEE OF PRIVATE SECTOR ORGANIZATION.—In addition to 

38 the restriction in paragraph (1), an employee of a private sector organi39 zation assigned to an agency under chapter 37 of title 5 shall not 

40 knowingly disclose contractor bid or proposal information or source seVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 lection information during the 3-year period after the employee’s as2 signment ends, except as provided by law. 

3 (3) APPLICATION.—Paragraph (1) applies to a person that— 

4 (A)(i) is a present or former official of the Federal Government; 

5 or 

6 (ii) is acting or has acted for or on behalf of, or who is advising 

7 or has advised the Federal Government with respect to, a Federal 

8 agency procurement; and 

9 (B) by virtue of that office, employment, or relationship has or 

10 had access to contractor bid or proposal information or source se11 lection information. 

12 (b) PROHIBITION ON OBTAINING PROCUREMENT INFORMATION.—Except 

13 as provided by law, a person shall not knowingly obtain contractor bid or 

14 proposal information or source selection information before the award of a 

15 Federal agency procurement contract to which the information relates. 

16 § 2103. Actions required of procurement officers when con17 tacted regarding non-Federal employment 

18 (a) ACTIONS REQUIRED.—An agency official participating personally and 

19 substantially in a Federal agency procurement for a contract in excess of 

20 the simplified acquisition threshold who contacts or is contacted by a person 

21 that is a bidder or offeror in that Federal agency procurement regarding 

22 possible non-Federal employment for that official shall— 

23 (1) promptly report the contact in writing to the official’s supervisor 

24 and to the designated agency ethics official (or designee) of the agency 

25 in which the official is employed; and 

26 (2)(A) reject the possibility of non-Federal employment; or 

27 (B) disqualify himself or herself from further personal and substan28 tial participation in that Federal agency procurement until the agency 

29 authorizes the official to resume participation in the procurement, in 

30 accordance with the requirements of section 208 of title 18 and appli31 cable agency regulations on the grounds that— 

32 (i) the person is no longer a bidder or offeror in that Federal 

33 agency procurement; or 

34 (ii) all discussions with the bidder or offeror regarding possible 

35 non-Federal employment have terminated without an agreement or 

36 arrangement for employment. 

37 (b) RETENTION OF REPORTS.—The agency shall retain each report re38 quired by this section for not less than 2 years following the submission of 

39 the report. The reports shall be made available to the public on request, ex40 cept that any part of a report that is exempt from the disclosure requireVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 ments of section 552(b)(1) of title 5 may be withheld from disclosure to the 

2 public. 

3 (c) PERSONS SUBJECT TO PENALTIES.—The following are subject to the 

4 penalties and administrative actions set forth in section 2105 of this title: 

5 (1) An official who knowingly fails to comply with the requirements 

6 of this section. 

7 (2) A bidder or offeror that engages in employment discussions with 

8 an official who is subject to the restrictions of this section, knowing 

9 that the official has not complied with paragraph (1) or (2) of sub10 section (a). 

11 § 2104. Prohibition on former official’s acceptance of com12 pensation from contractor 

13 (a) PROHIBITION.—A former official of a Federal agency may not accept 

14 compensation from a contractor as an employee, officer, director, or consult15 ant of the contractor within one year after the official— 

16 (1) served, when the contractor was selected or awarded a contract, 

17 as the procuring contracting officer, the source selection authority, a 

18 member of the source selection evaluation board, or the chief of a fi19 nancial or technical evaluation team in a procurement in which that 

20 contractor was selected for award of a contract in excess of 

21 $10,000,000; 

22 (2) served as the program manager, deputy program manager, or ad23 ministrative contracting officer for a contract in excess of $10,000,000 

24 awarded to that contractor; or 

25 (3) personally made for the Federal agency a decision to— 

26 (A) award a contract, subcontract, modification of a contract or 

27 subcontract, or a task order or delivery order in excess of 

28 $10,000,000 to that contractor; 

29 (B) establish overhead or other rates applicable to one or more 

30 contracts for that contractor that are valued in excess of 

31 $10,000,000; 

32 (C) approve issuance of one or more contract payments in ex33 cess of $10,000,000 to that contractor; or 

34 (D) pay or settle a claim in excess of $10,000,000 with that 

35 contractor. 

36 (b) WHEN COMPENSATION MAY BE ACCEPTED.—Subsection (a) does not 

37 prohibit a former official of a Federal agency from accepting compensation 

38 from a division or affiliate of a contractor that does not produce the same 

39 or similar products or services as the entity of the contractor that is respon40 sible for the contract referred to in paragraph (1), (2), or (3) of subsection 

41 (a). 


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1 (c) IMPLEMENTING REGULATIONS.—Regulations implementing this sec2 tion shall include procedures for an official or former official of a Federal 

3 agency to request advice from the appropriate designated agency ethics offi4 cial regarding whether the official or former official is or would be precluded 

5 by this section from accepting compensation from a particular contractor. 

6 (d) PERSONS SUBJECT TO PENALTIES.—The following are subject to the 

7 penalties and administrative actions set forth in section 2105 of this title: 

8 (1) A former official who knowingly accepts compensation in viola9 tion of this section. 

10 (2) A contractor that provides compensation to a former official 

11 knowing that the official accepts the compensation in violation of this 

12 section. 

13 § 2105. Penalties and administrative actions 

14 (a) CRIMINAL PENALTIES.—A person that violates section 2102 of this 

15 title to exchange information covered by section 2102 of this title for any16 thing of value or to obtain or give a person a competitive advantage in the 

17 award of a Federal agency procurement contract shall be fined under title 

18 18, imprisoned for not more than 5 years, or both. 

19 (b) CIVIL PENALTIES.—The Attorney General may bring a civil action in 

20 an appropriate district court of the United States against a person that en21 gages in conduct that violates section 2102, 2103, or 2104 of this title. On 

22 proof of that conduct by a preponderance of the evidence— 

23 (1) an individual is liable to the Federal Government for a civil pen24 alty of not more than $50,000 for each violation plus twice the amount 

25 of compensation that the individual received or offered for the prohib26 ited conduct; and 

27 (2) an organization is liable to the Federal Government for a civil 

28 penalty of not more than $500,000 for each violation plus twice the 

29 amount of compensation that the organization received or offered for 

30 the prohibited conduct. 

31 (c) ADMINISTRATIVE ACTIONS.— 

32 (1) TYPES OF ACTION THAT FEDERAL AGENCY MAY TAKE.—A Fed33 eral agency that receives information that a contractor or a person has 

34 violated section 2102, 2103, or 2104 of this title shall consider taking 

35 one or more of the following actions, as appropriate: 

36 (A) Canceling the Federal agency procurement, if a contract has 

37 not yet been awarded. 

38 (B) Rescinding a contract with respect to which— 

39 (i) the contractor or someone acting for the contractor has 

40 been convicted for an offense punishable under subsection (a); 

41 or 


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1 (ii) the head of the agency that awarded the contract has 

2 determined, based on a preponderance of the evidence, that 

3 the contractor or a person acting for the contractor has en4 gaged in conduct constituting the offense. 

5 (C) Initiating a suspension or debarment proceeding for the pro6 tection of the Federal Government in accordance with procedures 

7 in the Federal Acquisition Regulation. 

8 (D) Initiating an adverse personnel action, pursuant to the pro9 cedures in chapter 75 of title 5 or other applicable law or regula10 tion. 

11 (2) AMOUNT GOVERNMENT ENTITLED TO RECOVER.—When a Fed12 eral agency rescinds a contract pursuant to paragraph (1)(B), the Fed13 eral Government is entitled to recover, in addition to any penalty pre14 scribed by law, the amount expended under the contract. 

15 (3) PRESENT RESPONSIBILITY AFFECTED BY CONDUCT.—For pur16 poses of a suspension or debarment proceeding initiated pursuant to 

17 paragraph (1)(C), engaging in conduct constituting an offense under 

18 section 2102, 2103, or 2104 of this title affects the present responsi19 bility of a Federal Government contractor or subcontractor. 

20 § 2106. Reporting information believed to constitute evi21 dence of offense 

22 A person may not file a protest against the award or proposed award of 

23 a Federal agency procurement contract alleging a violation of section 2102, 

24 2103, or 2104 of this title, and the Comptroller General may not consider 

25 that allegation in deciding a protest, unless the person, no later than 14 

26 days after the person first discovered the possible violation, reported to the 

27 Federal agency responsible for the procurement the information that the 

28 person believed constitutes evidence of the offense. 

29 § 2107. Savings provisions 

30 This chapter does not— 

31 (1) restrict the disclosure of information to, or its receipt by, a per32 son or class of persons authorized, in accordance with applicable agency 

33 regulations or procedures, to receive that information; 

34 (2) restrict a contractor from disclosing its own bid or proposal in35 formation or the recipient from receiving that information; 

36 (3) restrict the disclosure or receipt of information relating to a Fed37 eral agency procurement after it has been canceled by the Federal 

38 agency before contract award unless the Federal agency plans to re39 sume the procurement; 

40 (4) prohibit individual meetings between a Federal agency official 

41 and an offeror or potential offeror for, or a recipient of, a contract or 


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1 subcontract under a Federal agency procurement, provided that unau2 thorized disclosure or receipt of contractor bid or proposal information 

3 or source selection information does not occur; 

4 (5) authorize the withholding of information from, nor restrict its re5 ceipt by, Congress, a committee or subcommittee of Congress, the 

6 Comptroller General, a Federal agency, or an inspector general of a 

7 Federal agency; 

8 (6) authorize the withholding of information from, nor restrict its re9 ceipt by, the Comptroller General in the course of a protest against the 

10 award or proposed award of a Federal agency procurement contract; 

11 or 

12 (7) limit the applicability of a requirement, sanction, contract pen13 alty, or remedy established under another law or regulation. 

14 CHAPTER 23—MISCELLANEOUS 

Sec. 

2301. Use of electronic commerce in Federal procurement. 

2302. Rights in technical data. 

2303. Conflict of interest standards for consultants. 

2304. Authority of Director of Office of Management and Budget not affected. 

2305. Openness of meetings. 

2306. Comptroller General’s access to information. 

2307. Modular contracting for information technology. 

2308. Protection of constitutional rights of contractors. 

2309. Performance-based contracts or task orders for services to be treated as contracts for 

the procurement of commercial items. 

15 § 2301. Use of electronic commerce in Federal procurement 

16 (a) DEFINITION.—For the purposes of this section, the term ‘‘electronic 

17 commerce’’ means electronic techniques for accomplishing business trans18 actions, including electronic mail or messaging, World Wide Web technology, 

19 electronic bulletin boards, purchase cards, electronic funds transfers, and 

20 electronic data interchange. 

21 (b) ESTABLISHMENT, MAINTENANCE, AND USE OF ELECTRONIC COM22 MERCE PROCEDURES AND PROCESSES.—The head of each executive agency, 

23 after consulting with the Administrator, shall establish, maintain, and use, 

24 to the maximum extent that is practicable and cost-effective, procedures and 

25 processes that employ electronic commerce in the conduct and administra26 tion of the procurement system of the agency. 

27 (c) APPLICABLE STANDARDS.—In conducting electronic commerce, the 

28 head of an executive agency shall apply nationally and internationally recog29 nized standards that broaden interoperability and ease the electronic inter30 change of information. 

31 (d) REQUIREMENTS OF SYSTEMS, TECHNOLOGIES, PROCEDURES, AND

32 PROCESSES.—The head of each executive agency shall ensure that systems, 

33 technologies, procedures, and processes established pursuant to this sec34 tion— 


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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 part C, regu40 lations prescribed under subsection (a) shall provide that the Federal 

41 Government may not require a person that has developed a product or 


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1 process offered or to be offered for sale to the public, as a condition 

2 for the Federal Government to procure the product or process, to pro3 vide to the Federal Government technical data relating to the design, 

4 development, or manufacture of the product or process. This paragraph 

5 does not apply to data that may be necessary for the Federal Govern6 ment to operate and maintain the product or use the process if the 

7 Federal Government obtains it as an element of performance under the 

8 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 part C, regulations prescribed under subsection (a) shall pro13 vide 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 


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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. 


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1 § 2303. Conflict of interest standards for consultants 

2 (a) CONTENT OF REGULATIONS.—The Administrator shall prescribe 

3 under this part Government-wide regulations that set forth— 

4 (1) conflict of interest standards for persons who provide consulting 

5 services described in subsection (b); and 

6 (2) procedures, including registration, certification, and enforcement 

7 requirements as may be appropriate, to promote compliance with the 

8 standards. 

9 (b) SERVICES SUBJECT TO REGULATIONS.—Regulations required by sub10 section (a) apply to— 

11 (1) advisory and assistance services provided to the Federal Govern12 ment to the extent necessary to identify and evaluate the potential for 

13 conflicts of interest that could be prejudicial to the interests of the 

14 United States; 

15 (2) services related to support of the preparation or submission of 

16 bids and proposals for Federal contracts to the extent that inclusion 

17 of the services in the regulations is necessary to identify and evaluate 

18 the potential for conflicts of interest that could be prejudicial to the 

19 interests of the United States; and 

20 (3) other services related to Federal contracts as specified in the reg21 ulations prescribed under subsection (a) to the extent necessary to 

22 identify and evaluate the potential for conflicts of interest that could 

23 be prejudicial to the interests of the United States. 

24 (c) INTELLIGENCE ACTIVITIES EXEMPTION.— 

25 (1) ACTIVITIES THAT MAY BE EXEMPT.—Intelligence activities as de26 fined in section 3.4(e) of Executive Order No. 12333 or a comparable 

27 definitional section in any successor order may be exempt from the reg28 ulations required by subsection (a). 

29 (2) REPORT.—The Director of Central Intelligence shall report to 

30 the Intelligence and Appropriations Committees of Congress each Jan31 uary 1, delineating the activities and organizations that have been ex32 empted under paragraph (1). 

33 (d) PRESIDENTIAL DETERMINATION.—Before the regulations required by 

34 subsection (a) are prescribed, the President shall determine if prescribing 

35 the regulations will have a significantly adverse effect on the accomplish36 ment of the mission of the Defense Department or another Federal agency. 

37 If the President determines that the regulations will have such an adverse 

38 effect, the President shall so report to the appropriate committees of the 

39 Senate and the House of Representatives, stating in full the reasons for the 

40 determination. If such a report is submitted, the requirement for the regula41 tions shall be null and void. 


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1 § 2304. Authority of Director of Office of Management and 

2 Budget not affected 

3 This part does not limit the authorities and responsibilities of the Direc4 tor of the Office of Management and Budget in effect on December 1, 1983. 

5 § 2305. Openness of meetings 

6 The Administrator by regulation shall require that— 

7 (1) formal meetings of the Office of Federal Procurement Policy, as 

8 designated by the Administrator, for developing procurement policies 

9 and regulations be open to the public; and 

10 (2) public notice of each meeting be given not less than 10 days 

11 prior to the meeting. 

12 § 2306. Comptroller General’s access to information 

13 The Administrator and personnel in the Office of Federal Procurement 

14 Policy shall furnish information the Comptroller General may require to dis15 charge the responsibilities of the Comptroller General. For this purpose, the 

16 Comptroller General or his representatives shall have access to all books, 

17 documents, papers, and records of the Office of Federal Procurement Pol18 icy. 

19 § 2307. Modular contracting for information technology 

20 (a) USE.—To the maximum extent practicable, the head of an executive 

21 agency should use modular contracting for an acquisition of a major system 

22 of information technology. 

23 (b) MODULAR CONTRACTING DESCRIBED.—Under modular contracting, 

24 an executive agency’s need for a system is satisfied in successive acquisi25 tions of interoperable increments. Each increment complies with common or 

26 commercially accepted standards applicable to information technology so 

27 that the increments are compatible with other increments of information 

28 technology comprising the system. 

29 (c) PROVISIONS IN FEDERAL ACQUISITION REGULATION.—The Federal 

30 Acquisition Regulation shall provide that— 

31 (1) under the modular contracting process, an acquisition of a major 

32 system of information technology may be divided into several smaller 

33 acquisition increments that— 

34 (A) are easier to manage individually than would be one com35 prehensive acquisition; 

36 (B) address complex information technology objectives incre37 mentally in order to enhance the likelihood of achieving workable 

38 solutions for attaining those objectives; 

39 (C) provide for delivery, implementation, and testing of work40 able systems or solutions in discrete increments, each of which 


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1 comprises a system or solution that is not dependent on a subse2 quent increment in order to perform its principal functions; and 

3 (D) provide an opportunity for subsequent increments of the ac4 quisition to take advantage of any evolution in technology or needs 

5 that occurs during conduct of the earlier increments; 

6 (2) to the maximum extent practicable, a contract for an increment 

7 of an information technology acquisition should be awarded within 180 

8 days after the solicitation is issued and, if the contract for that incre9 ment cannot be awarded within that period, the increment should be 

10 considered for cancellation; and 

11 (3) the information technology provided for in a contract for acquisi12 tion of information technology should be delivered within 18 months 

13 after the solicitation resulting in award of the contract was issued. 

14 § 2308. Protection of constitutional rights of contractors 

15 (a) PROHIBITION ON REQUIRING WAIVER OF RIGHTS.—A contractor may 

16 not be required, as a condition for entering into a contract with the Federal 

17 Government, to waive a right under the Constitution for a purpose relating 

18 to the Chemical Weapons Convention Implementation Act of 1998 (22 

19 U.S.C. 6701 et seq.) or the Chemical Weapons Convention (as defined in 

20 section 3 of that Act (22 U.S.C. 6701)). 

21 (b) PERMISSIBLE CONTRACT CLAUSES.—Subsection (a) does not prohibit 

22 an executive agency from including in a contract a clause that requires the 

23 contractor to permit inspections to ensure that the contractor is performing 

24 the contract in accordance with the provisions of the contract. 

25 § 2309. Performance-based contracts or task orders for serv26 ices to be treated as contracts for the procurement 

27 of commercial items 

28 (a) CRITERIA.—A performance-based contract for the procurement of 

29 services entered into by an executive agency or a performance-based task 

30 order for services issued by an executive agency may be treated as a con31 tract for the procurement of commercial items if— 

32 (1) the value of the contract or task order is estimated not to exceed 

33 $25,000,000; 

34 (2) the contract or task order sets forth specifically each task to be 

35 performed and, for each task— 

36 (A) defines the task in measurable, mission-related terms; 

37 (B) identifies the specific end products or output to be achieved; 

38 and 

39 (C) contains firm, fixed prices for specific tasks to be performed 

40 or outcomes to be achieved; and 


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1 (3) the source of the services provides similar services to the general 

2 public under terms and conditions similar to those offered to the Fed3 eral Government. 

4 (b) REGULATIONS.—Regulations implementing this section shall require 

5 agencies to collect and maintain reliable data sufficient to identify the con6 tracts or task orders treated as contracts for commercial items using the 

7 authority of this section. The data may be collected using the Federal Pro8 curement Data System or other reporting mechanism. 

9 (c) REPORT.—Not later than 2 years after November 24, 2003, the Di10 rector of the Office of Management and Budget shall prepare and submit 

11 to the Committees on Homeland Security and Governmental Affairs and on 

12 Armed Services of the Senate and the Committees on Government Reform 

13 and on Armed Services of the House of Representatives a report on the con14 tracts or task orders treated as contracts for commercial items using the 

15 authority of this section. The report shall include data on the use of the 

16 authority, both government-wide and for each department and agency. 

17 (d) EXPIRATION.—The authority under this section expires 10 years after 

18 November 24, 2003. 

19 PART C—PROCUREMENT

20 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 part. 

21 § 3101. Applicability 

22 (a) IN GENERAL.—An executive agency shall make purchases and con23 tracts for property and services in accordance with this part and imple24 menting regulations of the Administrator of General Services. 

25 (b) SIMPLIFIED ACQUISITION THRESHOLD AND PROCEDURES.— 

26 (1) SIMPLIFIED ACQUISITION THRESHOLD.— 

27 (A) DEFINITION.—For purposes of an acquisition by an execu28 tive agency, the simplified acquisition threshold is as specified in 

29 section 134 of this title. 

30 (B) INAPPLICABLE LAWS.—A law properly listed in the Federal 

31 Acquisition Regulation pursuant to section 1905 of this title does 

32 not apply to or with respect to a contract or subcontract that is 

33 not greater than the simplified acquisition threshold. 

34 (2) SIMPLIFIED ACQUISITION PROCEDURES.—Simplified acquisition 

35 procedures contained in the Federal Acquisition Regulation pursuant to 


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1 section 1901 of this title apply in executive agencies as provided in sec2 tion 1901. 

3 (c) EXCEPTIONS.— 

4 (1) IN GENERAL.—This part does not apply— 

5 (A) to the Department of Defense, the Coast Guard, and the 

6 National Aeronautics and Space Administration; or 

7 (B) except as provided in paragraph (2), when this part is made 

8 inapplicable pursuant to law. 

9 (2) APPLICABILITY OF CERTAIN LAWS RELATED TO ADVERTISING, 

10 OPENING OF BIDS, AND LENGTH OF CONTRACT.—Sections 6101, 6103, 

11 and 6304 of this title do not apply to the procurement of property or 

12 services made by an executive agency pursuant to this part. However, 

13 when this part is made inapplicable by any law, sections 6101 and 

14 6103 of this title apply in the absence of authority conferred by statute 

15 to procure without advertising or without regard to section 6101 of this 

16 title. A law that authorizes an executive agency (other than an execu17 tive agency exempted from this part by this subsection) to procure 

18 property or services without advertising or without regard to section 

19 6101 of this title is deemed to authorize the procurement pursuant to 

20 the provisions of this part relating to procedures other than sealed-bid 

21 procedures. 

22 § 3102. Delegation and assignment of powers, functions, and 

23 responsibilities 

24 (a) IN GENERAL.—Except to the extent expressly prohibited by another 

25 law, the head of an executive agency may delegate to another officer or offi26 cial of that agency any power under this part. 

27 (b) PROCUREMENTS FOR OR WITH ANOTHER AGENCY.—Subject to sub28 section (a), to facilitate the procurement of property and services covered 

29 by this part by an executive agency for another executive agency, and to 

30 facilitate joint procurement by executive agencies— 

31 (1) the head of an executive agency may delegate functions and as32 sign responsibilities relating to procurement to any officer or employee 

33 within the agency; 

34 (2) the heads of 2 or more executive agencies, consistent with section 

35 1535 of title 31 and regulations prescribed under section 1074 of the 

36 Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 

37 31 U.S.C. 1535 note), may by agreement delegate procurement func38 tions and assign procurement responsibilities from one executive agency 

39 to another of those executive agencies or to an officer or civilian em40 ployee of another of those executive agencies; and 


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1 (3) the heads of 2 or more executive agencies may establish joint or 

2 combined offices to exercise procurement functions and responsibilities. 

3 § 3103. Acquisition programs 

4 (a) CONGRESSIONAL POLICY.—It is the policy of Congress that the head 

5 of each executive agency should achieve, on average, 90 percent of the cost, 

6 performance, and schedule goals established for major acquisition programs 

7 of the agency. 

8 (b) ESTABLISHMENT OF GOALS.— 

9 (1) BY HEAD OF EXECUTIVE AGENCY.—The head of each executive 

10 agency shall approve or define the cost, performance, and schedule 

11 goals for major acquisition programs of the agency. 

12 (2) BY CHIEF FINANCIAL OFFICER.—The chief financial officer of an 

13 executive agency shall evaluate the cost goals proposed for each major 

14 acquisition program of the agency. 

15 (c) IDENTIFICATION OF NONCOMPLIANT PROGRAMS.—When it is nec16 essary to implement the policy set out in subsection (a), the head of an ex17 ecutive agency shall— 

18 (1) determine whether there is a continuing need for programs that 

19 are significantly behind schedule, over budget, or not in compliance 

20 with performance or capability requirements; and 

21 (2) identify suitable actions to be taken, including termination, with 

22 respect to those programs. 

23 § 3104. Small business concerns 

24 It is the policy of Congress that a fair proportion of the total purchases 

25 and contracts for property and services for the Federal Government shall 

26 be placed with small business concerns. 

27 § 3105. New contracts and grants and merit-based selection 

28 procedures 

29 (a) CONGRESSIONAL POLICY.—It is the policy of Congress that— 

30 (1) an executive agency should not be required by legislation to 

31 award— 

32 (A) a new contract to a specific non-Federal Government entity; 

33 or 

34 (B) a new grant for research, development, test, or evaluation 

35 to a non-Federal Government entity; and 

36 (2) a program, project, or technology identified in legislation be pro37 cured or awarded through merit-based selection procedures. 

38 (b) NEW CONTRACT AND NEW GRANT DESCRIBED.—For purposes of 

39 this section— 


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1 (1) a contract is a new contract unless the work provided for in the 

2 contract is a continuation of the work performed by the specified entity 

3 under a prior contract; and 

4 (2) a grant is a new grant unless the work provided for in the grant 

5 is a continuation of the work performed by the specified entity under 

6 a prior grant. 

7 (c) REQUIREMENTS FOR AWARDING NEW CONTRACT OR NEW GRANT.— 

8 A provision of law may not be construed as requiring a new contract or a 

9 new grant to be awarded to a specified non-Federal Government entity un10 less the provision of law specifically— 

11 (1) refers to this section; 

12 (2) identifies the particular non-Federal Government entity involved; 

13 and 

14 (3) states that the award to that entity is required by the provision 

15 of law in contravention of the policy set forth in subsection (a). 

16 (d) EXCEPTION.—This section does not apply to a contract or grant that 

17 calls on the National Academy of Sciences to investigate, examine, or experi18 ment on a subject of science or art of significance to an executive agency 

19 and to report on those matters to Congress or an agency of the Federal 

20 Government. 

21 § 3106. Erection, repair, or furnishing of public buildings 

22 and improvements not authorized, and certain 

23 contracts not permitted, by this part 

24 This part does not— 

25 (1) authorize the erection, repair, or furnishing of a public building 

26 or public improvement; or 

27 (2) permit a contract for the construction or repair of a building, 

28 road, sidewalk, sewer, main, or similar item using procedures other 

29 than sealed-bid procedures under section 3301(b)(1)(A) of this title if 

30 the conditions set forth in section 3301(b)(1)(A) of this title apply or 

31 the contract is to be performed outside the United States. 

32 CHAPTER 33—PLANNING AND SOLICITATION 

Sec. 

3301. Full and open competition. 

3302. Exclusion of particular source or restriction of solicitation to small business concerns. 

3303. Use of noncompetitive procedures. 

3304. Simplified procedures for small purchases. 

3305. Planning and solicitation requirements. 

3306. Preference for commercial items. 

3307. Planning for future competition in contracts for major systems. 

3308. Design-build selection procedures. 

3309. Quantities to order. 

3310. Qualification requirement. 


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1 § 3301. Full and open competition 

2 (a) IN GENERAL.—Except as provided in sections 3302, 3303(a), and 

3 3304 of this title and except in the case of procurement procedures other4 wise expressly authorized by statute, an executive agency in conducting a 

5 procurement for property or services shall— 

6 (1) obtain full and open competition through the use of competitive 

7 procedures in accordance with the requirements of this part and the 

8 Federal Acquisition Regulation; and 

9 (2) use the competitive procedure or combination of competitive pro10 cedures that is best suited under the circumstances of the procurement. 

11 (b) APPROPRIATE COMPETITIVE PROCEDURES.— 

12 (1) USE OF SEALED BIDS.—In determining the competitive proce13 dures appropriate under the circumstance, an executive agency shall— 

14 (A) solicit sealed bids if— 

15 (i) time permits the solicitation, submission, and evaluation 

16 of sealed bids; 

17 (ii) the award will be made on the basis of price and other 

18 price-related factors; 

19 (iii) it is not necessary to conduct discussions with the re20 sponding sources about their bids; and 

21 (iv) there is a reasonable expectation of receiving more 

22 than one sealed bid; or 

23 (B) request competitive proposals if sealed bids are not appro24 priate under subparagraph (A). 

25 (2) SEALED BID NOT REQUIRED.—Paragraph (1)(A) does not re26 quire the use of sealed-bid procedures in cases in which section 204(e) 

27 of title 23 applies. 

28 (c) EFFICIENT FULFILLMENT OF GOVERNMENT REQUIREMENTS.—The 

29 Federal Acquisition Regulation shall ensure that the requirement to obtain 

30 full and open competition is implemented in a manner that is consistent 

31 with the need to efficiently fulfill the Federal Government’s requirements. 

32 § 3302. Exclusion of particular source or restriction of solici33 tation to small business concerns 

34 (a) EXCLUSION OF PARTICULAR SOURCE.— 

35 (1) CRITERIA FOR EXCLUSION.—An executive agency may provide 

36 for the procurement of property or services covered by section 3301 of 

37 this title using competitive procedures but excluding a particular source 

38 to establish or maintain an alternative source of supply for that prop39 erty or service if the agency head determines that to do so would— 


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1 (A) increase or maintain competition and likely result in re2 duced overall cost for the procurement, or for an anticipated pro3 curement, of the property or services; 

4 (B) be in the interest of national defense in having a facility 

5 (or a producer, manufacturer, or other supplier) available for fur6 nishing the property or service in case of a national emergency or 

7 industrial mobilization; 

8 (C) be in the interest of national defense in establishing or 

9 maintaining an essential engineering, research, or development ca10 pability to be provided by an educational or other nonprofit insti11 tution or a Federally funded research and development center; 

12 (D) ensure the continuous availability of a reliable source of 

13 supply of the property or service; 

14 (E) satisfy projected needs for the property or service deter15 mined on the basis of a history of high demand for the property 

16 or service; or 

17 (F) satisfy a critical need for medical, safety, or emergency sup18 plies. 

19 (2) DETERMINATION FOR CLASS DISALLOWED.—A determination 

20 under paragraph (1) may not be made for a class of purchases or con21 tracts. 

22 (b) EXCLUSION OF OTHER THAN SMALL BUSINESS CONCERNS.—An ex23 ecutive agency may provide for the procurement of property or services cov24 ered by section 3301 of this title using competitive procedures, but exclud25 ing other than small business concerns in furtherance of sections 9 and 15 

26 of the Small Business Act (15 U.S.C. 638, 644). 

27 (c) NONAPPLICATION OF JUSTIFICATION AND APPROVAL REQUIRE28 MENTS.—A contract awarded pursuant to the competitive procedures re29 ferred to in subsections (a) and (b) is not subject to the justification and 

30 approval required by section 3303(d)(1) of this title. 

31 § 3303. Use of noncompetitive procedures 

32 (a) WHEN NONCOMPETITIVE PROCEDURES MAY BE USED.—An execu33 tive agency may use procedures other than competitive procedures only 

34 when— 

35 (1) the property or services needed by the executive agency are avail36 able from only one responsible source and no other type of property 

37 or services will satisfy the needs of the executive agency; 

38 (2) the executive agency’s need for the property or services is of such 

39 an unusual and compelling urgency that the Federal Government would 

40 be seriously injured unless the executive agency is permitted to limit 

41 the number of sources from which it solicits bids or proposals; 


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1 (3) it is necessary to award the contract to a particular source— 

2 (A) to maintain a facility, producer, manufacturer, or other sup3 plier available for furnishing property or services in case of a na4 tional emergency or to achieve industrial mobilization; 

5 (B) to establish or maintain an essential engineering, research, 

6 or development capability to be provided by an educational or 

7 other nonprofit institution or a Federally funded research and de8 velopment center; 

9 (C) to procure the services of an expert for use, in any litigation 

10 or dispute (including any reasonably foreseeable litigation or dis11 pute) involving the Federal Government, in any trial, hearing, or 

12 proceeding before a court, administrative tribunal, or agency, 

13 whether or not the expert is expected to testify; or 

14 (D) to procure the services of an expert or neutral for use in 

15 any part of an alternative dispute resolution or negotiated rule16 making process, whether or not the expert is expected to testify; 

17 (4) the terms of an international agreement or treaty between the 

18 Federal Government and a foreign government or an international or19 ganization, or the written directions of a foreign government reimburs20 ing the executive agency for the cost of the procurement of the prop21 erty or services for that government, have the effect of requiring the 

22 use of procedures other than competitive procedures; 

23 (5) subject to section 3105 of this title, a statute expressly author24 izes or requires that the procurement be made through another execu25 tive agency or from a specified source, or the agency’s need is for a 

26 brand-name commercial item for authorized resale; 

27 (6) the disclosure of the executive agency’s needs would compromise 

28 the national security unless the agency is permitted to limit the number 

29 of sources from which it solicits bids or proposals; or 

30 (7) the head of the executive agency (who may not delegate the au31 thority under this paragraph)— 

32 (A) determines that it is necessary in the public interest to use 

33 procedures other than competitive procedures in the particular 

34 procurement concerned; and 

35 (B) notifies Congress in writing of that determination not less 

36 than 30 days before the award of the contract. 

37 (b) PROPERTY OR SERVICES DEEMED AVAILABLE FROM ONLY ONE

38 SOURCE.—For the purposes of subsection (a)(1), in the case of— 

39 (1) a contract for property or services to be awarded on the basis 

40 of acceptance of an unsolicited research proposal, the property or serv41 ices are deemed to be available from only one source if the source has 


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1 submitted an unsolicited research proposal that demonstrates a unique 

2 and innovative concept, the substance of which is not otherwise avail3 able to the Federal Government and does not resemble the substance 

4 of a pending competitive procurement; or 

5 (2) a follow-on contract for the continued development or production 

6 of a major system or highly specialized equipment, the property may 

7 be deemed to be available only from the original source and may be 

8 procured through procedures other than competitive procedures when 

9 it is likely that award to a source other than the original source would 

10 result in— 

11 (A) substantial duplication of cost to the Federal Government 

12 that is not expected to be recovered through competition; or 

13 (B) unacceptable delay in fulfilling the executive agency’s needs. 

14 (c) OFFER REQUESTS TO POTENTIAL SOURCES.—An executive agency 

15 using procedures other than competitive procedures to procure property or 

16 services by reason of the application of paragraph (2) or (6) of subsection 

17 (a) shall request offers from as many potential sources as is practicable 

18 under the circumstances. 

19 (d) JUSTIFICATION FOR USE OF NONCOMPETITIVE PROCEDURES.— 

20 (1) PREREQUISITES FOR AWARDING CONTRACT.—Except as provided 

21 in paragraphs (4) and (5), an executive agency may not award a con22 tract using procedures other than competitive procedures unless— 

23 (A) the contracting officer for the contract justifies the use of 

24 those procedures in writing and certifies the accuracy and com25 pleteness of the justification; 

26 (B) the justification is approved, in the case of a contract for 

27 an amount— 

28 (i) exceeding $500,000 but equal to or less than 

29 $10,000,000, by the advocate for competition for the pro30 curing activity (without further delegation) or by an official 

31 referred to in clause (ii) or (iii); 

32 (ii) exceeding $10,000,000 but equal to or less than 

33 $50,000,000, by the head of the procuring activity or by a 

34 delegate who, if a member of the armed forces, is a general 

35 or flag officer or, if a civilian, is serving in a position in which 

36 the individual is entitled to receive the daily equivalent of the 

37 maximum annual rate of basic pay payable under section 

38 5376 of title 5 (or in a comparable or higher position under 

39 another schedule); or 


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1 (iii) exceeding $50,000,000, by the senior procurement ex2 ecutive of the agency designated pursuant to section 1702(c) 

3 of this title (without further delegation); and 

4 (C) any required notice has been published with respect to the 

5 contract pursuant to section 1707 of this title and the executive 

6 agency has considered all bids or proposals received in response 

7 to that notice. 

8 (2) ELEMENTS OF JUSTIFICATION.—The justification required by 

9 paragraph (1)(A) shall include— 

10 (A) a description of the agency’s needs; 

11 (B) an identification of the statutory exception from the re12 quirement to use competitive procedures and a demonstration, 

13 based on the proposed contractor’s qualifications or the nature of 

14 the procurement, of the reasons for using that exception; 

15 (C) a determination that the anticipated cost will be fair and 

16 reasonable; 

17 (D) a description of the market survey conducted or a state18 ment of the reasons a market survey was not conducted; 

19 (E) a listing of any sources that expressed in writing an interest 

20 in the procurement; and 

21 (F) a statement of any actions the agency may take to remove 

22 or overcome a barrier to competition before a subsequent procure23 ment for those needs. 

24 (3) JUSTIFICATION SUBJECT TO PUBLIC INSPECTION.—The justifica25 tion required by paragraph (1)(A) and any related information shall be 

26 made available for inspection by the public consistent with section 552 

27 of title 5. 

28 (4) JUSTIFICATION ALLOWED AFTER CONTRACT AWARDED.—In the 

29 case of a procurement permitted by subsection (a)(2), the justification 

30 and approval required by paragraph (1) may be made after the con31 tract is awarded. 

32 (5) JUSTIFICATION NOT REQUIRED.—The justification and approval 

33 required by paragraph (1) are not required if— 

34 (A) a statute expressly requires that the procurement be made 

35 from a specified source; 

36 (B) the agency’s need is for a brand-name commercial item for 

37 authorized resale; 

38 (C) the procurement is permitted by subsection (a)(7); or 

39 (D) the procurement is conducted under chapter 85 of this title 

40 or section 8(a) of the Small Business Act (15 U.S.C. 637(a)). 

41 (6) RESTRICTIONS ON EXECUTIVE AGENCIES.— 


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1 (A) CONTRACTS AND PROCUREMENT OF PROPERTY OR SERV2 ICES.—In no case may an executive agency— 

3 (i) enter into a contract for property or services using pro4 cedures other than competitive procedures on the basis of the 

5 lack of advance planning or concerns related to the amount 

6 available to the agency for procurement functions; or 

7 (ii) procure property or services from another executive 

8 agency unless the other executive agency complies fully with 

9 the requirements of this part in its procurement of the prop10 erty or services. 

11 (B) ADDITIONAL RESTRICTION.—The restriction set out in sub12 paragraph (A)(ii) is in addition to any other restriction provided 

13 by law. 

14 § 3304. Simplified procedures for small purchases 

15 (a) AUTHORIZATION.—To promote efficiency and economy in contracting 

16 and to avoid unnecessary burdens for agencies and contractors, the Federal 

17 Acquisition Regulation shall provide for special simplified procedures for 

18 purchases of property and services for amounts— 

19 (1) not greater than the simplified acquisition threshold; and 

20 (2) greater than the simplified acquisition threshold but not greater 

21 than $5,000,000 for which the contracting officer reasonably expects, 

22 based on the nature of the property or services sought and on market 

23 research, that offers will include only commercial items. 

24 (b) LEASEHOLD INTERESTS IN REAL PROPERTY.—The Administrator of 

25 General Services shall prescribe regulations that provide special simplified 

26 procedures for acquisitions of leasehold interests in real property at rental 

27 rates that do not exceed the simplified acquisition threshold. The rental rate 

28 under a multiyear lease does not exceed the simplified acquisition threshold 

29 if the average annual amount of the rent payable for the period of the lease 

30 does not exceed the simplified acquisition threshold. 

31 (c) PROHIBITION ON DIVIDING CONTRACTS.—A proposed purchase or 

32 contract for an amount above the simplified acquisition threshold may not 

33 be divided into several purchases or contracts for lesser amounts to use the 

34 simplified procedures required by subsection (a). 

35 (d) PROMOTION OF COMPETITION.—In using the simplified procedures, 

36 an executive agency shall promote competition to the maximum extent prac37 ticable. 

38 (e) COMPLIANCE WITH SPECIAL REQUIREMENTS OF FEDERAL ACQUISI39 TION REGULATION.—An executive agency shall comply with the Federal Ac40 quisition Regulation provisions referred to in section 1901(f) of this title. 


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1 § 3305. Planning and solicitation requirements 

2 (a) PLANNING AND SPECIFICATIONS.— 

3 (1) PREPARING FOR PROCUREMENT.—In preparing for the procure4 ment of property or services, an executive agency shall— 

5 (A) specify its needs and solicit bids or proposals in a manner 

6 designed to achieve full and open competition for the procurement; 

7 (B) use advance procurement planning and market research; 

8 and 

9 (C) develop specifications in the manner necessary to obtain full 

10 and open competition with due regard to the nature of the prop11 erty or services to be acquired. 

12 (2) REQUIREMENTS OF SPECIFICATIONS.—Each solicitation under 

13 this part shall include specifications that— 

14 (A) consistent with this part, permit full and open competition; 

15 and 

16 (B) include restrictive provisions or conditions only to the extent 

17 necessary to satisfy the needs of the executive agency or as au18 thorized by law. 

19 (3) TYPES OF SPECIFICATIONS.—For the purposes of paragraphs (1) 

20 and (2), the type of specification included in a solicitation shall depend 

21 on the nature of the needs of the executive agency and the market 

22 available to satisfy those needs. Subject to those needs, specifications 

23 may be stated in terms of— 

24 (A) function, so that a variety of products or services may qual25 ify; 

26 (B) performance, including specifications of the range of accept27 able characteristics or of the minimum acceptable standards; or 

28 (C) design requirements. 

29 (b) CONTENTS OF SOLICITATION.—In addition to the specifications de30 scribed in subsection (a), each solicitation for sealed bids or competitive pro31 posals (other than for a procurement for commercial items using special 

32 simplified procedures or a purchase for an amount not greater than the sim33 plified acquisition threshold) shall at a minimum include— 

34 (1) a statement of— 

35 (A) all significant factors and subfactors that the executive 

36 agency reasonably expects to consider in evaluating sealed bids 

37 (including price) or competitive proposals (including cost or price, 

38 cost-related or price-related factors and subfactors, and noncost39 related or nonprice-related factors and subfactors); and 

40 (B) the relative importance assigned to each of those factors 

41 and subfactors; and 


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1 (2)(A) in the case of sealed bids— 

2 (i) a statement that sealed bids will be evaluated without discus3 sions with the bidders; and 

4 (ii) the time and place for the opening of the sealed bids; or 

5 (B) in the case of competitive proposals— 

6 (i) either a statement that the proposals are intended to be eval7 uated with, and the award made after, discussions with the 

8 offerors, or a statement that the proposals are intended to be eval9 uated, and the award made, without discussions with the offerors 

10 (other than discussions conducted for the purpose of minor clari11 fication) unless discussions are determined to be necessary; and 

12 (ii) the time and place for submission of proposals. 

13 (c) EVALUATION FACTORS.— 

14 (1) IN GENERAL.—In prescribing the evaluation factors to be in15 cluded in each solicitation for competitive proposals, an executive agen16 cy shall— 

17 (A) establish clearly the relative importance assigned to the 

18 evaluation factors and subfactors, including the quality of the 

19 product or services to be provided (including technical capability, 

20 management capability, prior experience, and past performance of 

21 the offeror); 

22 (B) include cost or price to the Federal Government as an eval23 uation factor that must be considered in the evaluation of pro24 posals; and 

25 (C) disclose to offerors whether all evaluation factors other than 

26 cost or price, when combined, are— 

27 (i) significantly more important than cost or price; 

28 (ii) approximately equal in importance to cost or price; or 

29 (iii) significantly less important than cost or price. 

30 (2) RESTRICTION ON IMPLEMENTING REGULATIONS.—Regulations 

31 implementing paragraph (1)(C) may not define the terms ‘‘significantly 

32 more important’’ and ‘‘significantly less important’’ as specific numeric 

33 weights that would be applied uniformly to all solicitations or a class 

34 of solicitations. 

35 (d) ADDITIONAL INFORMATION IN SOLICITATION.—This section does not 

36 prohibit an executive agency from— 

37 (1) providing additional information in a solicitation, including nu38 meric weights for all evaluation factors and subfactors on a case-by39 case basis; or 


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1 (2) stating in a solicitation that award will be made to the offeror 

2 that meets the solicitation’s mandatory requirements at the lowest cost 

3 or price. 

4 (e) LIMITATION ON EVALUATION OF PURCHASE OPTIONS.—An executive 

5 agency, in issuing a solicitation for a contract to be awarded using sealed 

6 bid procedures, may not include in the solicitation a clause providing for the 

7 evaluation of prices for options to purchase additional property or services 

8 under the contract unless the executive agency has determined that there 

9 is a reasonable likelihood that the options will be exercised. 

10 (f) AUTHORIZATION OF TELECOMMUTING FOR FEDERAL CONTRAC11 TORS.— 

12 (1) DEFINITION.—In this subsection, the term ‘‘executive agency’’ 

13 has the meaning given that term in section 133 of this title. 

14 (2) FEDERAL ACQUISITION REGULATION TO ALLOW TELECOM15 MUTING.—The Federal Acquisition Regulation issued in accordance 

16 with sections 1121(b) and 1303(a)(1) of this title shall permit telecom17 muting by employees of Federal Government contractors in the per18 formance of contracts entered into with executive agencies. 

19 (3) SCOPE OF ALLOWANCE.—The Federal Acquisition Regulation at 

20 a minimum shall provide that a solicitation for the acquisition of prop21 erty or services may not set forth any requirement or evaluation cri22 teria that would— 

23 (A) render an offeror ineligible to enter into a contract on the 

24 basis of the inclusion of a plan of the offeror to allow the offeror’s 

25 employees to telecommute, unless the contracting officer concerned 

26 first determines that the requirements of the agency, including se27 curity requirements, cannot be met if telecommuting is allowed 

28 and documents in writing the basis for the determination; or 

29 (B) reduce the scoring of an offer on the basis of the inclusion 

30 in the offer of a plan of the offeror to allow the offeror’s employ31 ees to telecommute, unless the contracting officer concerned first 

32 determines that the requirements of the agency, including security 

33 requirements, would be adversely impacted if telecommuting is al34 lowed and documents in writing the basis for the determination. 

35 § 3306. Preference for commercial items 

36 (a) RELATIONSHIP OF PROVISIONS OF LAW TO PROCUREMENT OF COM37 MERCIAL ITEMS.— 

38 (1) THIS PART.—Unless otherwise specifically provided, all other 

39 provisions in this part also apply to the procurement of commercial 

40 items. 


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1 (2) LAWS LISTED IN FEDERAL ACQUISITION REGULATION.—A con2 tract for the procurement of a commercial item entered into by the 

3 head of an executive agency is not subject to a law properly listed in 

4 the Federal Acquisition Regulation pursuant to section 1906 of this 

5 title. 

6 (b) PREFERENCE.—The head of each executive agency shall ensure that, 

7 to the maximum extent practicable— 

8 (1) requirements of the executive agency with respect to a procure9 ment of supplies or services are stated in terms of— 

10 (A) functions to be performed; 

11 (B) performance required; or 

12 (C) essential physical characteristics; 

13 (2) those requirements are defined so that commercial items or, to 

14 the extent that commercial items suitable to meet the executive agen15 cy’s needs are not available, nondevelopmental items other than com16 mercial items may be procured to fulfill those requirements; and 

17 (3) offerors of commercial items and nondevelopmental items other 

18 than commercial items are provided an opportunity to compete in any 

19 procurement to fill those requirements. 

20 (c) IMPLEMENTATION.—The head of each executive agency shall ensure 

21 that procurement officials in that executive agency, to the maximum extent 

22 practicable— 

23 (1) acquire commercial items or nondevelopmental items other than 

24 commercial items to meet the needs of the executive agency; 

25 (2) require that prime contractors and subcontractors at all levels 

26 under contracts of the executive agency incorporate commercial items 

27 or nondevelopmental items other than commercial items as components 

28 of items supplied to the executive agency; 

29 (3) modify requirements in appropriate cases to ensure that the re30 quirements can be met by commercial items or, to the extent that com31 mercial items suitable to meet the executive agency’s needs are not 

32 available, nondevelopmental items other than commercial items; 

33 (4) state specifications in terms that enable and encourage bidders 

34 and offerors to supply commercial items or, to the extent that commer35 cial items suitable to meet the executive agency’s needs are not avail36 able, nondevelopmental items other than commercial items in response 

37 to the executive agency solicitations; 

38 (5) revise the executive agency’s procurement policies, practices, and 

39 procedures not required by law to reduce any impediments in those 

40 policies, practices, and procedures to the acquisition of commercial 

41 items; and 


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1 (6) require training of appropriate personnel in the acquisition of 

2 commercial items. 

3 (d) MARKET RESEARCH.— 

4 (1) WHEN TO BE USED.—The head of an executive agency shall con5 duct market research appropriate to the circumstances— 

6 (A) before developing new specifications for a procurement by 

7 that executive agency; and 

8 (B) before soliciting bids or proposals for a contract in excess 

9 of the simplified acquisition threshold. 

10 (2) USE OF RESULTS.—The head of an executive agency shall use 

11 the results of market research to determine whether commercial items 

12 or, to the extent that commercial items suitable to meet the executive 

13 agency’s needs are not available, nondevelopmental items other than 

14 commercial items are available that— 

15 (A) meet the executive agency’s requirements; 

16 (B) could be modified to meet the executive agency’s require17 ments; or 

18 (C) could meet the executive agency’s requirements if those re19 quirements were modified to a reasonable extent. 

20 (3) ONLY MINIMUM INFORMATION REQUIRED TO BE SUBMITTED.— 

21 In conducting market research, the head of an executive agency should 

22 not require potential sources to submit more than the minimum infor23 mation that is necessary to make the determinations required in para24 graph (2). 

25 (e) REGULATIONS.— 

26 (1) IN GENERAL.—The Federal Acquisition Regulation shall provide 

27 regulations to implement this section, sections 102, 103, 105, and 110 

28 of this title, and chapter 140 of title 10. 

29 (2) CONTRACT CLAUSES.— 

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

31 includes a transfer of commercial items between divisions, subsidi32 aries, or affiliates of a contractor or subcontractor. 

33 (B) LIST OF CLAUSES TO BE INCLUDED.—The regulations pre34 scribed under paragraph (1) shall contain a list of contract clauses 

35 to be included in contracts for the acquisition of commercial end 

36 items. To the maximum extent practicable, the list shall include 

37 only those contract clauses that are— 

38 (i) required to implement provisions of law or executive or39 ders applicable to acquisitions of commercial items or com40 mercial components; or 


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1 (ii) determined to be consistent with standard commercial 

2 practice. 

3 (C) REQUIREMENTS OF PRIME CONTRACTOR.—The regulations 

4 shall provide that the Federal Government shall not require a 

5 prime contractor to apply to any of its divisions, subsidiaries, af6 filiates, subcontractors, or suppliers that are furnishing commer7 cial items any contract clause except those that are— 

8 (i) required to implement provisions of law or executive or9 ders applicable to subcontractors furnishing commercial items 

10 or commercial components; or 

11 (ii) determined to be consistent with standard commercial 

12 practice. 

13 (D) CLAUSES THAT MAY BE USED IN A CONTRACT.—To the 

14 maximum extent practicable, only the contract clauses listed pur15 suant to subparagraph (B) may be used in a contract, and only 

16 the contract clauses referred to in subparagraph (C) may be re17 quired to be used in a subcontract, for the acquisition of commer18 cial items or commercial components by or for an executive agen19 cy. 

20 (E) WAIVER OF CONTRACT CLAUSES.—The Federal Acquisition 

21 Regulation shall provide standards and procedures for waiving the 

22 use of contract clauses required pursuant to subparagraph (B), 

23 other than those required by law, including standards for deter24 mining the cases in which a waiver is appropriate. 

25 (3) MARKET ACCEPTANCE.— 

26 (A) REQUIREMENT OF OFFERORS.—The Federal Acquisition 

27 Regulation shall provide that under appropriate conditions the 

28 head of an executive agency may require offerors to demonstrate 

29 that the items offered— 

30 (i) have achieved commercial market acceptance or been 

31 satisfactorily supplied to an executive agency under current or 

32 recent contracts for the same or similar requirements; and 

33 (ii) otherwise meet the item description, specifications, or 

34 other criteria prescribed in the public notice and solicitation 

35 relating to the contract. 

36 (B) REGULATION TO PROVIDE GUIDANCE ON CRITERIA.—The 

37 Federal Acquisition Regulation shall provide guidance to ensure 

38 that the criteria for determining commercial market acceptance in39 clude the consideration of— 

40 (i) the minimum needs of the executive agency concerned; 

41 and 


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1 (ii) the entire relevant commercial market, including small 

2 businesses. 

3 (4) PROVISIONS RELATING TO TYPES OF CONTRACTS.— 

4 (A) TYPES OF CONTRACTS THAT MAY BE USED.—The Federal 

5 Acquisition Regulation shall include, for acquisitions of commercial 

6 items— 

7 (i) a requirement that firm, fixed price contracts or fixed 

8 price with economic price adjustment contracts be used to the 

9 maximum extent practicable; 

10 (ii) a prohibition on use of cost type contracts; and 

11 (iii) subject to subparagraph (B), authority for use of a 

12 time-and-materials or labor-hour contract for the procurement 

13 of commercial services that are commonly sold to the general 

14 public through those contracts and are purchased by the pro15 curing agency on a competitive basis. 

16 (B) WHEN TIME-AND-MATERIALS OR LABOR-HOUR CONTRACT

17 MAY BE USED.—A time-and-materials or labor-hour contract may 

18 be used pursuant to the authority referred to in subparagraph 

19 (A)(iii)— 

20 (i) only for a procurement of commercial services in a cat21 egory of commercial services described in subparagraph (C); 

22 and 

23 (ii) only if the contracting officer for the procurement— 

24 (I) executes a determination and findings that no 

25 other contract type is suitable; 

26 (II) includes in the contract a ceiling price that the 

27 contractor exceeds at its own risk; and 

28 (III) authorizes a subsequent change in the ceiling 

29 price only on a determination, documented in the con30 tract file, that it is in the best interest of the procuring 

31 agency to change the ceiling price. 

32 (C) CATEGORIES OF COMMERCIAL SERVICES.—The categories of 

33 commercial services referred to in subparagraph (B) are as fol34 lows: 

35 (i) Commercial services procured for support of a commer36 cial item, as described in section 103(5) of this title. 

37 (ii) Any other category of commercial services that the Ad38 ministrator for Federal Procurement Policy designates in the 

39 Federal Acquisition Regulation for the purposes of this sub40 paragraph on the basis that— 


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1 (I) the commercial services in the category are of a 

2 type of commercial services that are commonly sold to 

3 the general public through use of time-and-materials or 

4 labor-hour contracts; and 

5 (II) it would be in the best interests of the Federal 

6 Government to authorize use of time-and-materials or 

7 labor-hour contracts for purchases of the commercial 

8 services in the category. 

9 (5) CONTRACT QUALITY REQUIREMENTS.—Regulations prescribed 

10 under paragraph (1) shall include provisions that— 

11 (A) allow, to the maximum extent practicable, a contractor 

12 under a commercial items acquisition to use the existing quality 

13 assurance system of the contractor as a substitute for compliance 

14 with an otherwise applicable requirement for the Federal Govern15 ment to inspect or test the commercial items before the contrac16 tor’s tender of those items for acceptance by the Federal Govern17 ment; 

18 (B) require that, to the maximum extent practicable, the execu19 tive agency take advantage of warranties (including extended war20 ranties) offered by offerors of commercial items and use those 

21 warranties for the repair and replacement of commercial items; 

22 and 

23 (C) set forth guidance regarding the use of past performance of 

24 commercial items and sources as a factor in contract award deci25 sions. 

26 § 3307. Planning for future competition in contracts for 

27 major systems 

28 (a) DEVELOPMENT CONTRACT.— 

29 (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre30 paring a solicitation for the award of a development contract for a 

31 major system, the head of an agency shall consider requiring in the so32 licitation that an offeror include in its offer proposals described in 

33 paragraph (2). In determining whether to require the proposals, the 

34 head of the agency shall consider the purposes for which the system 

35 is being procured and the technology necessary to meet the system’s 

36 required capabilities. If the proposals are required, the head of the 

37 agency shall consider them in evaluating the offeror’s price. 

38 (2) CONTENTS OF PROPOSALS.—The proposals that the head of an 

39 agency is to consider requiring in a solicitation for the award of a de40 velopment contract are the following: 


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1 (A) Proposals to incorporate in the design of the major system 

2 items that are currently available within the supply system of the 

3 Federal agency responsible for the major system, available else4 where in the national supply system, or commercially available 

5 from more than one source. 

6 (B) With respect to items that are likely to be required in sub7 stantial quantities during the system’s service life, proposals to in8 corporate in the design of the major system items that the Federal 

9 Government will be able to acquire competitively in the future. 

10 (b) PRODUCTION CONTRACT.— 

11 (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre12 paring a solicitation for the award of a production contract for a major 

13 system, the head of an agency shall consider requiring in the solicita14 tion that an offeror include in its offer proposals described in para15 graph (2). In determining whether to require the proposals, the head 

16 of the agency shall consider the purposes for which the system is being 

17 procured and the technology necessary to meet the system’s required 

18 capabilities. If the proposals are required, the head of the agency shall 

19 consider them in evaluating the offeror’s price. 

20 (2) CONTENT OF PROPOSALS.—The proposals that the head of an 

21 agency is to consider requiring in a solicitation for the award of a pro22 duction contract are proposals identifying opportunities to ensure that 

23 the Federal Government will be able to obtain on a competitive basis 

24 items procured in connection with the system that are likely to be re25 procured in substantial quantities during the service life of the system. 

26 Proposals submitted in response to this requirement may include the 

27 following: 

28 (A) Proposals to provide to the Federal Government the right 

29 to use technical data to be provided under the contract for com30 petitive reprocurement of the item, together with the cost to the 

31 Federal Government of acquiring the data and the right to use the 

32 data. 

33 (B) Proposals for the qualification or development of multiple 

34 sources of supply for the item. 

35 (c) CONSIDERATION OF FACTORS AS OBJECTIVES IN NEGOTIATIONS.— 

36 If the head of an agency is making a noncompetitive award of a develop37 ment contract or a production contract for a major system, the factors spec38 ified in subsections (a) and (b) to be considered in evaluating an offer for 

39 a contract may be considered as objectives in negotiating the contract to 

40 be awarded. 


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1 § 3308. Design-build selection procedures 

2 (a) AUTHORIZATION.—Unless the traditional acquisition approach of de3 sign-bid-build established under sections 1101 to 1104 of title 40 or another 

4 acquisition procedure authorized by law is used, the head of an executive 

5 agency shall use the two-phase selection procedures authorized in this sec6 tion for entering into a contract for the design and construction of a public 

7 building, facility, or work when a determination is made under subsection 

8 (b) that the procedures are appropriate for use. 

9 (b) CRITERIA FOR USE.—A contracting officer shall make a determina10 tion whether two-phase selection procedures are appropriate for use for en11 tering into a contract for the design and construction of a public building, 

12 facility, or work when— 

13 (1) the contracting officer anticipates that 3 or more offers will be 

14 received for the contract; 

15 (2) design work must be performed before an offeror can develop a 

16 price or cost proposal for the contract; 

17 (3) the offeror will incur a substantial amount of expense in pre18 paring the offer; and 

19 (4) the contracting officer has considered information such as the 

20 following: 

21 (A) The extent to which the project requirements have been 

22 adequately defined. 

23 (B) The time constraints for delivery of the project. 

24 (C) The capability and experience of potential contractors. 

25 (D) The suitability of the project for use of the two-phase selec26 tion procedures. 

27 (E) The capability of the agency to manage the two-phase selec28 tion process. 

29 (F) Other criteria established by the agency. 

30 (c) PROCEDURES DESCRIBED.—Two-phase selection procedures consist of 

31 the following: 

32 (1) DEVELOPMENT OF SCOPE OF WORK STATEMENT.—The agency 

33 develops, either in-house or by contract, a scope of work statement for 

34 inclusion in the solicitation that defines the project and provides pro35 spective offerors with sufficient information regarding the Federal Gov36 ernment’s requirements (which may include criteria and preliminary de37 sign, budget parameters, and schedule or delivery requirements) to en38 able the offerors to submit proposals that meet the Federal Govern39 ment’s needs. If the agency contracts for development of the scope of 

40 work statement, the agency shall contract for architectural and engiVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00088 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 neering services as defined by and in accordance with sections 1101 to 

2 1104 of title 40. 

3 (2) SOLICITATION OF PHASE-ONE PROPOSALS.—The contracting offi4 cer solicits phase-one proposals that— 

5 (A) include information on the offeror’s— 

6 (i) technical approach; and 

7 (ii) technical qualifications; and 

8 (B) do not include— 

9 (i) detailed design information; or 

10 (ii) cost or price information. 

11 (3) EVALUATION FACTORS.—The evaluation factors to be used in 

12 evaluating phase-one proposals are stated in the solicitation and include 

13 specialized experience and technical competence, capability to perform, 

14 past performance of the offeror’s team (including the architect-engineer 

15 and construction members of the team), and other appropriate factors, 

16 except that cost-related or price-related evaluation factors are not per17 mitted. Each solicitation establishes the relative importance assigned to 

18 the evaluation factors and subfactors that must be considered in the 

19 evaluation of phase-one proposals. The agency evaluates phase-one pro20 posals on the basis of the phase-one evaluation factors set forth in the 

21 solicitation. 

22 (4) SELECTION BY CONTRACTING OFFICER.— 

23 (A) NUMBER OF OFFERORS SELECTED AND WHAT IS TO BE

24 EVALUATED.—The contracting officer selects as the most highly 

25 qualified the number of offerors specified in the solicitation to pro26 vide the property or services under the contract and requests the 

27 selected offerors to submit phase-two competitive proposals that 

28 include technical proposals and cost or price information. Each so29 licitation establishes with respect to phase two— 

30 (i) the technical submission for the proposal, including de31 sign concepts or proposed solutions to requirements addressed 

32 within the scope of work, or both; and 

33 (ii) the evaluation factors and subfactors, including cost or 

34 price, that must be considered in the evaluations of proposals 

35 in accordance with subsections (b) to (d) of section 3305 of 

36 this title. 

37 (B) SEPARATE EVALUATIONS.—The contracting officer sepa38 rately evaluates the submissions described in clauses (i) and (ii) 

39 of subparagraph (A). 

40 (5) AWARDING OF CONTRACT.—The agency awards the contract in 

41 accordance with chapter 37 of this title. 


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1 (d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE SELECTED

2 FOR PHASE-TWO REQUESTS FOR COMPETITIVE PROPOSALS.—A solicitation 

3 issued pursuant to the procedures described in subsection (c) shall state the 

4 maximum number of offerors that are to be selected to submit competitive 

5 proposals pursuant to subsection (c)(4). The maximum number specified in 

6 the solicitation shall not exceed 5 unless the agency determines with respect 

7 to an individual solicitation that a specified number greater than 5 is in the 

8 Federal Government’s interest and is consistent with the purposes and ob9 jectives of the two-phase selection process. 

10 (e) REQUIREMENT FOR GUIDANCE AND REGULATIONS.—The Federal Ac11 quisition Regulation shall include guidance— 

12 (1) regarding the factors that may be considered in determining 

13 whether the two-phase contracting procedures authorized by subsection 

14 (a) are appropriate for use in individual contracting situations; 

15 (2) regarding the factors that may be used in selecting contractors; 

16 and 

17 (3) providing for a uniform approach to be used Government-wide. 

18 § 3309. Quantities to order 

19 (a) FACTORS AFFECTING QUANTITY TO ORDER.—Each executive agency 

20 shall procure supplies in a quantity that— 

21 (1) will result in the total cost and unit cost most advantageous to 

22 the Federal Government, where practicable; and 

23 (2) does not exceed the quantity reasonably expected to be required 

24 by the agency. 

25 (b) OFFEROR’S OPINION OF QUANTITY.—Each solicitation for a contract 

26 for supplies shall, if practicable, include a provision inviting each offeror re27 sponding to the solicitation to state an opinion on whether the quantity of 

28 supplies proposed to be procured is economically advantageous to the Fed29 eral Government and, if applicable, to recommend a quantity that would be 

30 more economically advantageous to the Federal Government. Each rec31 ommendation shall include a quotation of the total price and the unit price 

32 for supplies procured in each recommended quantity. 

33 § 3310. Qualification requirement 

34 (a) DEFINITION.—In this section, the term ‘‘qualification requirement’’ 

35 means a requirement for testing or other quality assurance demonstration 

36 that must be completed by an offeror before award of a contract. 

37 (b) ACTIONS BEFORE ENFORCING QUALIFICATION REQUIREMENT.—Ex38 cept as provided in subsection (c), the head of an agency, before enforcing 

39 any qualification requirement, shall— 


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1 (1) prepare a written justification stating the necessity for estab2 lishing the qualification requirement and specify why the qualification 

3 requirement must be demonstrated before contract award; 

4 (2) specify in writing and make available to a potential offeror on 

5 request all requirements that a prospective offeror, or its product, must 

6 satisfy to become qualified, with those requirements to be limited to 

7 those least restrictive to meet the purposes necessitating the establish8 ment of the qualification requirement; 

9 (3) specify an estimate of the cost of testing and evaluation likely 

10 to be incurred by a potential offeror to become qualified; 

11 (4) ensure that a potential offeror is provided, on request, a prompt 

12 opportunity to demonstrate at its own expense (except as provided in 

13 subsection (d)) its ability to meet the standards specified for qualifica14 tion using— 

15 (A) qualified personnel and facilities— 

16 (i) of the agency concerned; 

17 (ii) of another agency obtained through interagency agree18 ment; or 

19 (iii) under contract; or 

20 (B) other methods approved by the agency (including use of ap21 proved testing and evaluation services not provided under contract 

22 to the agency); 

23 (5) if testing and evaluation services are provided under contract to 

24 the agency for the purposes of paragraph (4), provide to the extent 

25 possible that those services be provided by a contractor that— 

26 (A) is not expected to benefit from an absence of additional 

27 qualified sources; and 

28 (B) is required in the contract to adhere to any restriction on 

29 technical data asserted by the potential offeror seeking qualifica30 tion; and 

31 (6) ensure that a potential offeror seeking qualification is promptly 

32 informed whether qualification is attained and, if not attained, is 

33 promptly furnished specific information about why qualification was 

34 not attained. 

35 (c) APPLICABILITY, WAIVER AUTHORITY, AND REFERRAL OF OFFERS.— 

36 (1) APPLICABILITY.—Subsection (b) does not apply to a qualification 

37 requirement established by statute prior to October 30, 1984. 

38 (2) WAIVER AUTHORITY.— 

39 (A) SUBMISSION OF DETERMINATION OF

40 UNREASONABLENESS.—Except as provided in subparagraph (C), if 

41 it is unreasonable to specify the standards for qualification that 


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1 a prospective offeror or its product must satisfy, a determination 

2 to that effect shall be submitted to the advocate for competition 

3 of the procuring activity responsible for the purchase of the item 

4 subject to the qualification requirement. 

5 (B) AUTHORITY TO GRANT WAIVER.—After considering any 

6 comments of the advocate for competition reviewing the deter7 mination, the head of the procuring activity may waive the re8 quirements of paragraphs (2) to (5) of subsection (b) for up to 

9 2 years with respect to the item subject to the qualification re10 quirement. 

11 (C) NONAPPLICABILITY TO QUALIFIED PRODUCTS LIST.—Waiv12 er authority under this paragraph does not apply with respect to 

13 a qualified products list. 

14 (3) SUBMISSION AND CONSIDERATION OF OFFER NOT TO BE DE15 NIED.—A potential offeror may not be denied the opportunity to sub16 mit and have considered an offer for a contract solely because the po17 tential offeror has not been identified as meeting a qualification re18 quirement if the potential offeror can demonstrate to the satisfaction 

19 of the contracting officer that the potential offeror or its product meets 

20 the standards established for qualification or can meet those standards 

21 before the date specified for award of the contract. 

22 (4) REFERRAL TO SMALL BUSINESS ADMINISTRATION NOT RE23 QUIRED.—This subsection does not require the referral of an offer to 

24 the Small Business Administration pursuant to section 8(b)(7) of the 

25 Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral 

26 is a challenge by the offeror to either the validity of the qualification 

27 requirement or the offeror’s compliance with that requirement. 

28 (5) DELAY OF PROCUREMENT NOT REQUIRED.—The head of an 

29 agency need not delay a proposed procurement to comply with sub30 section (b) or to provide a potential offeror with an opportunity to dem31 onstrate its ability to meet the standards specified for qualification. 

32 (d) FEWER THAN 2 ACTUAL MANUFACTURERS.— 

33 (1) SOLICITATION AND TESTING OF ADDITIONAL SOURCES OR PROD34 UCTS.—If the number of qualified sources or qualified products avail35 able to compete actively for an anticipated future requirement is fewer 

36 than 2 actual manufacturers or the products of 2 actual manufactur37 ers, respectively, the head of the agency concerned shall— 

38 (A) publish notice periodically soliciting additional sources or 

39 products to seek qualification, unless the contracting officer deter40 mines that doing so would compromise national security; and 


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1 (B) subject to paragraph (2), bear the cost of conducting the 

2 specified testing and evaluation (excluding the cost associated with 

3 producing the item or establishing the production, quality control, 

4 or other system to be tested and evaluated) for a small business 

5 concern or a product manufactured by a small business concern 

6 that has met the standards specified for qualification and that 

7 could reasonably be expected to compete for a contract for that 

8 requirement. 

9 (2) WHEN AGENCY MAY BEAR COST.—The head of the agency con10 cerned may bear the cost under paragraph (1)(B) only if the head of 

11 the agency determines that the additional qualified sources or products 

12 are likely to result in cost savings from increased competition for future 

13 requirements sufficient to offset (within a reasonable period of time 

14 considering the duration and dollar value of anticipated future require15 ments) the cost incurred by the agency. 

16 (3) CERTIFICATION REQUIRED.—The head of the agency shall re17 quire a prospective contractor requesting the Federal Government to 

18 bear testing and evaluation costs under paragraph (1)(B) to certify its 

19 status as a small business concern under section 3 of the Small Busi20 ness Act (15 U.S.C. 632). 

21 (e) EXAMINATION AND REVALIDATION OF QUALIFICATION REQUIRE22 MENT.—Within 7 years after the establishment of a qualification require23 ment, the need for the requirement shall be examined and the standards of 

24 the requirement revalidated in accordance with the requirements of sub25 section (b). This subsection does not apply in the case of a qualification re26 quirement for which a waiver is in effect under subsection (c)(2). 

27 (f) WHEN ENFORCEMENT OF QUALIFICATION REQUIREMENT NOT AL28 LOWED.—Except in an emergency as determined by the head of the agency, 

29 after the head of the agency determines not to enforce a qualification re30 quirement for a solicitation, the agency may not enforce the requirement un31 less the agency complies with the requirements of subsection (b). 

32 CHAPTER 35—TRUTHFUL COST AND PRICING DATA 

Sec. 

3501. Definitions. 

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. 

33 § 3501. Definitions 

34 In this chapter: 


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1 (1) COMMERCIAL ITEM.—The term ‘‘commercial item’’ has the 

2 meaning provided the term by section 103 of this title. 

3 (2) COST OR PRICING DATA.—The term ‘‘cost or pricing data’’ 

4 means all facts that, as of the date of agreement on the price of a con5 tract (or the price of a contract modification) or, if applicable con6 sistent with section 3506(a)(2) of this title, another date agreed upon 

7 between the parties, a prudent buyer or seller would reasonably expect 

8 to affect price negotiations significantly. The term does not include in9 formation that is judgmental, but does include factual information from 

10 which a judgment was derived. 

11 (3) SUBCONTRACT.—The term ‘‘subcontract’’ includes a transfer of 

12 commercial items between divisions, subsidiaries, or affiliates of a con13 tractor or a subcontractor. 

14 § 3502. Required cost or pricing data and certification 

15 (a) WHEN REQUIRED.—The head of an executive agency shall require 

16 offerors, contractors, and subcontractors to make cost or pricing data avail17 able as follows: 

18 (1) OFFEROR FOR PRIME CONTRACT.—An offeror for a prime con19 tract under this part to be entered into using procedures other than 

20 sealed-bid procedures shall be required to submit cost or pricing data 

21 before the award of a contract if— 

22 (A) in the case of a prime contract entered into after October 

23 13, 1994, the price of the contract to the Federal Government is 

24 expected to exceed $500,000; and 

25 (B) in the case of a prime contract entered into on or before 

26 October 13, 1994, the price of the contract to the Federal Govern27 ment is expected to exceed $100,000. 

28 (2) CONTRACTOR.—The contractor for a prime contract under this 

29 part shall be required to submit cost or pricing data before the pricing 

30 of a change or modification to the contract if— 

31 (A) in the case of a change or modification made to a prime 

32 contract referred to in paragraph (1)(A), the price adjustment is 

33 expected to exceed $500,000; 

34 (B) in the case of a change or modification made to a prime 

35 contract that was entered into on or before October 13, 1994, and 

36 that has been modified pursuant to subsection (f), the price ad37 justment is expected to exceed $500,000; and 

38 (C) in the case of a change or modification not covered by sub39 paragraph (A) or (B), the price adjustment is expected to exceed 

40 $100,000. 


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1 (3) OFFEROR FOR SUBCONTRACT.—An offeror for a subcontract (at 

2 any tier) of a contract under this part shall be required to submit cost 

3 or pricing data before the award of the subcontract if the prime con4 tractor and each higher-tier subcontractor have been required to make 

5 available cost or pricing data under this chapter and— 

6 (A) in the case of a subcontract under a prime contract referred 

7 to in paragraph (1)(A), the price of the subcontract is expected 

8 to exceed $500,000; 

9 (B) in the case of a subcontract entered into under a prime con10 tract that was entered into on or before October 13, 1994, and 

11 that has been modified pursuant to subsection (f), the price of the 

12 subcontract is expected to exceed $500,000; and 

13 (C) in the case of a subcontract not covered by subparagraph 

14 (A) or (B), the price of the subcontract is expected to exceed 

15 $100,000. 

16 (4) SUBCONTRACTOR.—The subcontractor for a subcontract covered 

17 by paragraph (3) shall be required to submit cost or pricing data before 

18 the pricing of a change or modification to the subcontract if— 

19 (A) in the case of a change or modification to a subcontract re20 ferred to in paragraph (3)(A) or (B), the price adjustment is ex21 pected to exceed $500,000; and 

22 (B) in the case of a change or modification to a subcontract re23 ferred to in paragraph (3)(C), the price adjustment is expected to 

24 exceed $100,000. 

25 (b) CERTIFICATION.—A person required, as an offeror, contractor, or 

26 subcontractor, to submit cost or pricing data under subsection (a) (or re27 quired by the head of the procuring activity concerned to submit the data 

28 under section 3504 of this title) shall be required to certify that, to the best 

29 of the person’s knowledge and belief, the cost or pricing data submitted are 

30 accurate, complete, and current. 

31 (c) TO WHOM SUBMITTED.—Cost or pricing data required to be sub32 mitted under subsection (a) (or under section 3504 of this title), and a cer33 tification required to be submitted under subsection (b), shall be sub34 mitted— 

35 (1) in the case of a submission by a prime contractor (or an offeror 

36 for a prime contract), to the contracting officer for the contract (or a 

37 designated representative of the contracting officer); or 

38 (2) in the case of a submission by a subcontractor (or an offeror for 

39 a subcontract), to the prime contractor. 


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1 (d) APPLICATION OF CHAPTER.—Except as provided under section 3503 

2 of this title, this chapter applies to contracts entered into by the head of 

3 an executive agency on behalf of a foreign government. 

4 (e) SUBCONTRACTS NOT AFFECTED BY WAIVER.—A waiver of require5 ments for submission of certified cost or pricing data that is granted under 

6 section 3503(a)(3) of this title in the case of a contract or subcontract does 

7 not waive the requirement under subsection (a)(3) of this section for sub8 mission of cost or pricing data in the case of subcontracts under that con9 tract or subcontract unless the head of the procuring activity granting the 

10 waiver determines that the requirement under subsection (a)(3) of this sec11 tion should be waived in the case of those subcontracts and justifies in writ12 ing the reason for the determination. 

13 (f) MODIFICATIONS TO PRIOR CONTRACTS.—On the request of a con14 tractor that was required to submit cost or pricing data under subsection 

15 (a) in connection with a prime contract entered into on or before October 

16 13, 1994, the head of the executive agency that entered into the contract 

17 shall modify the contract to reflect paragraphs (2)(B) and (3)(B) of sub18 section (a). All those modifications shall be made without requiring consid19 eration. 

20 (g) ADJUSTMENT OF AMOUNTS.—Effective on October 1 of each year 

21 that is divisible by 5, each amount set forth in subsection (a) shall be ad22 justed to the amount that is equal to the fiscal year 1994 constant dollar 

23 value of the amount set forth. Any amount, as so adjusted, that is not even24 ly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. 

25 In the case of an amount that is evenly divisible by $25,000 but not evenly 

26 divisible by $50,000, the amount shall be rounded to the next higher mul27 tiple of $50,000. 

28 § 3503. Exceptions 

29 (a) IN GENERAL.—Submission of certified cost or pricing data shall not 

30 be required under section 3502 of this title in the case of a contract, a sub31 contract, or a modification of a contract or subcontract— 

32 (1) for which the price agreed on is based on— 

33 (A) adequate price competition; or 

34 (B) prices set by law or regulation; 

35 (2) for the acquisition of a commercial item; or 

36 (3) in an exceptional case when the head of the procuring activity, 

37 without delegation, determines that the requirements of this chapter 

38 may be waived and justifies in writing the reasons for the determina39 tion. 

40 (b) MODIFICATIONS OF CONTRACTS AND SUBCONTRACTS FOR COMMER41 CIAL ITEMS.—In the case of a modification of a contract or subcontract for 


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1 a commercial item that is not covered by the exception to the submission 

2 of certified cost or pricing data in paragraph (1) or (2) of subsection (a), 

3 submission of certified cost or pricing data shall not be required under sec4 tion 3502 of this title if— 

5 (1) the contract or subcontract being modified is a contract or sub6 contract for which submission of certified cost or pricing data may not 

7 be required by reason of paragraph (1) or (2) of subsection (a); and 

8 (2) the modification would not change the contract or subcontract 

9 from a contract or subcontract for the acquisition of a commercial item 

10 to a contract or subcontract for the acquisition of an item other than 

11 a commercial item. 

12 § 3504. Cost or pricing data on below-threshold contracts 

13 (a) AUTHORITY TO REQUIRE SUBMISSION.—Subject to subsection (b), 

14 when certified cost or pricing data are not required to be submitted by sec15 tion 3502 of this title for a contract, subcontract, or modification of a con16 tract or subcontract, the data may nevertheless be required to be submitted 

17 by the head of the procuring activity, but only if the head of the procuring 

18 activity determines that the data are necessary for the evaluation by the 

19 agency of the reasonableness of the price of the contract, subcontract, or 

20 modification of a contract or subcontract. In any case in which the head 

21 of the procuring activity requires the data to be submitted under this sec22 tion, the head of the procuring activity shall justify in writing the reason 

23 for the requirement. 

24 (b) EXCEPTION.—The head of the procuring activity may not require cer25 tified cost or pricing data to be submitted under this section for any con26 tract or subcontract, or modification of a contract or subcontract, covered 

27 by the exceptions in section 3503(a)(1) or (2) of this title. 

28 (c) DELEGATION OF AUTHORITY PROHIBITED.—The head of a procuring 

29 activity may not delegate the functions under this section. 

30 § 3505. Submission of other information 

31 (a) AUTHORITY TO REQUIRE SUBMISSION.—When certified cost or pric32 ing data are not required to be submitted under this chapter for a contract, 

33 subcontract, or modification of a contract or subcontract, the contracting of34 ficer shall require submission of data other than certified cost or pricing 

35 data to the extent necessary to determine the reasonableness of the price 

36 of the contract, subcontract, or modification of the contract or subcontract. 

37 Except in the case of a contract or subcontract covered by the exceptions 

38 in section 3503(a)(1) of this title, the contracting officer shall require that 

39 the data submitted include, at a minimum, appropriate information on the 

40 prices at which the same item or similar items have previously been sold 


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1 that is adequate for evaluating the reasonableness of the price for the pro2 curement. 

3 (b) LIMITATIONS ON AUTHORITY.—The Federal Acquisition Regulation 

4 shall include the following provisions regarding the types of information that 

5 contracting officers may require under subsection (a): 

6 (1) REASONABLE LIMITATIONS.—Reasonable limitations on requests 

7 for sales data relating to commercial items. 

8 (2) LIMITATION ON SCOPE OF REQUEST.—A requirement that a con9 tracting officer limit, to the maximum extent practicable, the scope of 

10 any request for information relating to commercial items from an offer11 or to only that information that is in the form regularly maintained 

12 by the offeror in commercial operations. 

13 (3) INFORMATION NOT TO BE DISCLOSED.—A statement that any in14 formation received relating to commercial items that is exempt from 

15 disclosure under section 552(b) of title 5 shall not be disclosed by the 

16 Federal Government. 

17 § 3506. Price reductions for defective cost or pricing data 

18 (a) PROVISION REQUIRING ADJUSTMENT.— 

19 (1) IN GENERAL.—A prime contract (or change or modification to 

20 a prime contract) under which a certificate under section 3502(b) of 

21 this title is required shall contain a provision that the price of the con22 tract to the Federal Government, including profit or fee, shall be ad23 justed to exclude any significant amount by which it may be deter24 mined by the head of the executive agency that the price was increased 

25 because the contractor (or any subcontractor required to make the cer26 tificate available) submitted defective cost or pricing data. 

27 (2) WHAT CONSTITUTES DEFECTIVE COST OR PRICING DATA.—For 

28 the purposes of this chapter, defective cost or pricing data are cost or 

29 pricing data that, as of the date of agreement on the price of the con30 tract (or another date agreed on between the parties), were inaccurate, 

31 incomplete, or noncurrent. If for purposes of the preceding sentence the 

32 parties agree on a date other than the date of agreement on the price 

33 of the contract, the date agreed on by the parties shall be as close to 

34 the date of agreement on the price of the contract as is practicable. 

35 (b) VALID DEFENSE.—In determining for purposes of a contract price 

36 adjustment under a contract provision required by subsection (a) whether, 

37 and to what extent, a contract price was increased because the contractor 

38 (or a subcontractor) submitted defective cost or pricing data, it is a defense 

39 that the Federal Government did not rely on the defective data submitted 

40 by the contractor or subcontractor. 


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1 (c) INVALID DEFENSES.—It is not a defense to an adjustment of the 

2 price of a contract under a contract provision required by subsection (a) 

3 that— 

4 (1) the price of the contract would not have been modified even if 

5 accurate, complete, and current cost or pricing data had been sub6 mitted by the contractor or subcontractor because the contractor or 

7 subcontractor— 

8 (A) was the sole source of the property or services procured; or 

9 (B) otherwise was in a superior bargaining position with respect 

10 to the property or services procured; 

11 (2) the contracting officer should have known that the cost or pricing 

12 data in issue were defective even though the contractor or subcon13 tractor took no affirmative action to bring the character of the data 

14 to the attention of the contracting officer; 

15 (3) the contract was based on an agreement between the contractor 

16 and the Federal Government about the total cost of the contract and 

17 there was no agreement about the cost of each item procured under 

18 the contract; or 

19 (4) the prime contractor or subcontractor did not submit a certifi20 cation of cost or pricing data relating to the contract as required by 

21 section 3502(b) of this title. 

22 (d) OFFSETS.— 

23 (1) WHEN ALLOWED.—A contractor shall be allowed to offset an 

24 amount against the amount of a contract price adjustment under a 

25 contract provision required by subsection (a) if— 

26 (A) the contractor certifies to the contracting officer (or to a 

27 designated representative of the contracting officer) that, to the 

28 best of the contractor’s knowledge and belief, the contractor is en29 titled to the offset; and 

30 (B) the contractor proves that the cost or pricing data were 

31 available before the date of agreement on the price of the contract 

32 (or price of the modification), or, if applicable, consistent with 

33 subsection (a)(2), another date agreed on by the parties, and that 

34 the data were not submitted as specified in section 3502(c) of this 

35 title before that date. 

36 (2) WHEN NOT ALLOWED.—A contractor shall not be allowed to off37 set an amount otherwise authorized to be offset under paragraph (1) 

38 if— 

39 (A) the certification under section 3502(b) of this title with re40 spect to the cost or pricing data involved was known to be false 

41 when signed; or 


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1 (B) the Federal Government proves that, had the cost or pricing 

2 data referred to in paragraph (1)(B) been submitted to the Fed3 eral Government before date of agreement on the price of the con4 tract (or price of the modification), or, if applicable, under sub5 section (a)(2), another date agreed on by the parties, the submis6 sion of the cost or pricing data would not have resulted in an in7 crease in that price in the amount to be offset. 

8 § 3507. Interest and penalties for certain overpayments 

9 (a) IN GENERAL.—If the Federal Government makes an overpayment to 

10 a contractor under a contract with an executive agency subject to this chap11 ter and the overpayment was due to the submission by the contractor of 

12 defective cost or pricing data, the contractor shall be liable to the Federal 

13 Government— 

14 (1) for interest on the amount of the overpayment, to be computed— 

15 (A) for the period beginning on the date the overpayment was 

16 made to the contractor and ending on the date the contractor re17 pays the amount of the overpayment to the Federal Government; 

18 and 

19 (B) at the current rate prescribed by the Secretary of the 

20 Treasury under section 6621 of the Internal Revenue Code of 

21 1986 (26 U.S.C. 6621); and 

22 (2) if the submission of the defective data was a knowing submission, 

23 for an additional amount equal to the amount of the overpayment. 

24 (b) LIABILITY NOT AFFECTED BY REFUSAL TO SUBMIT CERTIFI25 CATION.—Any liability under this section of a contractor that submits cost 

26 or pricing data but refuses to submit the certification required by section 

27 3502(b) of this title with respect to the cost or pricing data is not affected 

28 by the refusal to submit the certification. 

29 § 3508. Right to examine contractor records 

30 For the purpose of evaluating the accuracy, completeness, and currency 

31 of cost or pricing data required to be submitted by this chapter, an execu32 tive agency shall have the authority provided by section 4706(b)(2) of this 

33 title. 

34 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. 


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1 § 3701. Basis of award and rejection 

2 (a) AWARD.—An executive agency shall evaluate sealed bids and competi3 tive proposals, and award a contract, based solely on the factors specified 

4 in the solicitation. 

5 (b) REJECTION.—All sealed bids or competitive proposals received in re6 sponse to a solicitation may be rejected if the agency head determines that 

7 rejection is in the public interest. 

8 § 3702. Sealed bids 

9 (a) OPENING OF BIDS.—Sealed bids shall be opened publicly at the time 

10 and place stated in the solicitation. 

11 (b) CRITERIA FOR AWARDING CONTRACT.—The executive agency shall 

12 evaluate the bids in accordance with section 3701(a) of this title without 

13 discussions with the bidders and, except as provided in section 3701(b) of 

14 this title, shall award a contract with reasonable promptness to the respon15 sible source whose bid conforms to the solicitation and is most advantageous 

16 to the Federal Government, considering only price and the other price-re17 lated factors included in the solicitation. 

18 (c) NOTICE OF AWARD.—The award of a contract shall be made by trans19 mitting, in writing or by electronic means, notice of the award to the suc20 cessful bidder. Within 3 days after the date of contract award, the executive 

21 agency shall notify, in writing or by electronic means, each bidder not 

22 awarded the contract that the contract has been awarded. 

23 § 3703. Competitive proposals 

24 (a) EVALUATION AND AWARD.—An executive agency shall evaluate com25 petitive proposals in accordance with section 3701(a) of this title and may 

26 award a contract— 

27 (1) after discussions with the offerors, provided that written or oral 

28 discussions have been conducted with all responsible offerors who sub29 mit proposals within the competitive range; or 

30 (2) based on the proposals received and without discussions with the 

31 offerors (other than discussions conducted for the purpose of minor 

32 clarification), if, as required by section 3305(b)(2)(B)(i) of this title, 

33 the solicitation included a statement that proposals are intended to be 

34 evaluated, and award made, without discussions unless discussions are 

35 determined to be necessary. 

36 (b) LIMIT ON NUMBER OF PROPOSALS.—If the contracting officer deter37 mines that the number of offerors that would otherwise be included in the 

38 competitive range under subsection (a)(1) exceeds the number at which an 

39 efficient competition can be conducted, the contracting officer may limit the 

40 number of proposals in the competitive range, in accordance with the cri41 teria specified in the solicitation, to the greatest number that will permit 


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1 an efficient competition among the offerors rated most highly in accordance 

2 with those criteria. 

3 (c) CRITERIA FOR AWARDING CONTRACT.—Except as otherwise provided 

4 in section 3701(b) of this title, the executive agency shall award a contract 

5 with reasonable promptness to the responsible source whose proposal is most 

6 advantageous to the Federal Government, considering only cost or price and 

7 the other factors included in the solicitation. 

8 (d) NOTICE OF AWARD.—The executive agency shall award the contract 

9 by transmitting, in writing or by electronic means, notice of the award to 

10 that source and, within 3 days after the date of contract award, shall notify, 

11 in writing or by electronic means, all other offerors of the rejection of their 

12 proposals. 

13 § 3704. Post-award debriefings 

14 (a) REQUEST FOR DEBRIEFING.—When a contract is awarded by the 

15 head of an executive agency on the basis of competitive proposals, an unsuc16 cessful offeror, on written request received by the agency within 3 days after 

17 the date on which the unsuccessful offeror receives the notification of the 

18 contract award, shall be debriefed and furnished the basis for the selection 

19 decision and contract award. 

20 (b) WHEN DEBRIEFING TO BE CONDUCTED.—The executive agency shall 

21 debrief the offeror within, to the maximum extent practicable, 5 days after 

22 receipt of the request by the executive agency. 

23 (c) INFORMATION TO BE PROVIDED.—The debriefing shall include, at a 

24 minimum— 

25 (1) the executive agency’s evaluation of the significant weak or defi26 cient factors in the offeror’s offer; 

27 (2) the overall evaluated cost and technical rating of the offer of the 

28 contractor awarded the contract and the overall evaluated cost and 

29 technical rating of the offer of the debriefed offeror; 

30 (3) the overall ranking of all offers; 

31 (4) a summary of the rationale for the award; 

32 (5) in the case of a proposal that includes a commercial item that 

33 is an end item under the contract, the make and model of the item 

34 being provided in accordance with the offer of the contractor awarded 

35 the contract; and 

36 (6) reasonable responses to relevant questions posed by the debriefed 

37 offeror as to whether source selection procedures set forth in the solici38 tation, applicable regulations, and other applicable authorities were fol39 lowed by the executive agency. 

40 (d) INFORMATION NOT TO BE INCLUDED.—The debriefing may not in41 clude point-by-point comparisons of the debriefed offeror’s offer with other 


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1 offers and may not disclose any information that is exempt from disclosure 

2 under section 552(b) of title 5. 

3 (e) INCLUSION OF STATEMENT IN SOLICITATION.—Each solicitation for 

4 competitive proposals shall include a statement that information described 

5 in subsection (c) may be disclosed in post-award debriefings. 

6 (f) AFTER SUCCESSFUL PROTEST.—If, within one year after the date of 

7 the contract award and as a result of a successful procurement protest, the 

8 executive agency seeks to fulfill the requirement under the protested con9 tract either on the basis of a new solicitation of offers or on the basis of 

10 new best and final offers requested for that contract, the head of the execu11 tive agency shall make available to all offerors— 

12 (1) the information provided in debriefings under this section regard13 ing the offer of the contractor awarded the contract; and 

14 (2) the same information that would have been provided to the origi15 nal offerors. 

16 (g) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall 

17 include a summary of the debriefing in the contract file. 

18 § 3705. Pre-award debriefings 

19 (a) REQUEST FOR DEBRIEFING.—When the contracting officer excludes 

20 an offeror submitting a competitive proposal from the competitive range (or 

21 otherwise excludes that offeror from further consideration prior to the final 

22 source selection decision), the excluded offeror may request in writing, with23 in 3 days after the date on which the excluded offeror receives notice of its 

24 exclusion, a debriefing prior to award. 

25 (b) WHEN DEBRIEFING TO BE CONDUCTED.—The contracting officer 

26 shall make every effort to debrief the unsuccessful offeror as soon as prac27 ticable but may refuse the request for a debriefing if it is not in the best 

28 interests of the Federal Government to conduct a debriefing at that time. 

29 (c) PRECONDITION FOR POST-AWARD DEBRIEFING.—The contracting of30 ficer is required to debrief an excluded offeror in accordance with section 

31 3704 of this title only if that offeror requested and was refused a pre-award 

32 debriefing under subsections (a) and (b). 

33 (d) INFORMATION TO BE PROVIDED.—The debriefing conducted under 

34 this section shall include— 

35 (1) the executive agency’s evaluation of the significant elements in 

36 the offeror’s offer; 

37 (2) a summary of the rationale for the offeror’s exclusion; and 

38 (3) reasonable responses to relevant questions posed by the debriefed 

39 offeror as to whether source selection procedures set forth in the solici40 tation, applicable regulations, and other applicable authorities were fol41 lowed by the executive agency. 


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1 (e) INFORMATION NOT TO BE DISCLOSED.—The debriefing conducted 

2 pursuant to this section may not disclose the number or identity of other 

3 offerors and shall not disclose information about the content, ranking, or 

4 evaluation of other offerors’ proposals. 

5 (f) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall 

6 include a summary of the debriefing in the contract file. 

7 § 3706. Encouragement of alternative dispute resolution 

8 The Federal Acquisition Regulation shall include a provision encouraging 

9 the use of alternative dispute resolution techniques to provide informal, ex10 peditious, and inexpensive procedures for an offeror to consider using before 

11 filing a protest, prior to the award of a contract, of the exclusion of the 

12 offeror from the competitive range (or otherwise from further consideration) 

13 for that contract. 

14 § 3707. Antitrust violations 

15 If the agency head considers that a bid or proposal evidences a violation 

16 of the antitrust laws, the agency head shall refer the bid or proposal to the 

17 Attorney General for appropriate action. 

18 § 3708. Protests 

19 (a) PROTEST FILE.— 

20 (1) ESTABLISHMENT AND ACCESS.—If, in the case of a solicitation 

21 for a contract issued by, or an award or proposed award of a contract 

22 by, the head of an executive agency, a protest is filed pursuant to the 

23 procedures in subchapter V of chapter 35 of title 31, and an actual 

24 or prospective offeror requests, a file of the protest shall be established 

25 by the procuring activity and reasonable access shall be provided to ac26 tual or prospective offerors. 

27 (2) REDACTED INFORMATION.—Information exempt from disclosure 

28 under section 552 of title 5 may be redacted in a file established pursu29 ant to paragraph (1) unless an applicable protective order provides oth30 erwise. 

31 (b) AGENCY ACTIONS ON PROTESTS.—If, in connection with a protest, 

32 the head of an executive agency determines that a solicitation, proposed 

33 award, or award does not comply with the requirements of law or regula34 tion, the head of the executive agency may— 

35 (1) take any action set out in subparagraphs (A) to (F) of subsection 

36 (b)(1) of section 3554 of title 31; and 

37 (2) pay costs described in paragraph (1) of section 3554(c) of title 

38 31 within the limits referred to in paragraph (2) of section 3554(c). 

39 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. 


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3903. Multiyear contracts. 

3904. Contract authority for severable services contracts and multiyear contracts. 

3905. Cost contracts. 

1 § 3901. Contracts awarded using procedures other than 

2 sealed-bid procedures 

3 (a) AUTHORIZED TYPES.—Except as provided in section 3905 of this 

4 title, contracts awarded after using procedures other than sealed-bid proce5 dures may be of any type which in the opinion of the agency head will pro6 mote the best interests of the Federal Government. 

7 (b) REQUIRED WARRANTY.— 

8 (1) CONTENT.—Every contract awarded after using procedures other 

9 than sealed-bid procedures shall contain a suitable warranty, as deter10 mined by the agency head, by the contractor that no person or selling 

11 agency has been employed or retained to solicit or secure the contract 

12 on an agreement or understanding for a commission, percentage, bro13 kerage, or contingent fee, except for bona fide employees or bona fide 

14 established commercial or selling agencies the contractor maintains to 

15 secure business. 

16 (2) REMEDY FOR BREACH OR VIOLATION.—For the breach or viola17 tion of the warranty, the Federal Government may annul the contract 

18 without liability or deduct from the contract price or consideration the 

19 full amount of the commission, percentage, brokerage, or contingent 

20 fee. 

21 (3) NONAPPLICATION.—Paragraph (1) does not apply to a contract 

22 for an amount that is not greater than the simplified acquisition 

23 threshold or to a contract for the acquisition of commercial items. 

24 § 3902. Severable services contracts for periods crossing fis25 cal years 

26 (a) AUTHORITY TO ENTER INTO CONTRACT.—The head of an executive 

27 agency may enter into a contract for the procurement of severable services 

28 for a period that begins in one fiscal year and ends in the next fiscal year 

29 if (without regard to any option to extend the period of the contract) the 

30 contract period does not exceed one year. 

31 (b) OBLIGATION OF AMOUNTS.—Amounts made available for a fiscal year 

32 may be obligated for the total amount of a contract entered into under the 

33 authority of this section. 

34 § 3903. Multiyear contracts 

35 (a) DEFINITION.—In this section, a multiyear contract is a contract for 

36 the purchase of property or services for more than one, but not more than 

37 5, program years. 


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1 (b) AUTHORITY TO ENTER INTO CONTRACT.—An executive agency may 

2 enter into a multiyear contract for the acquisition of property or services 

3 if— 

4 (1) amounts are available and obligated for the contract, for the full 

5 period of the contract or for the first fiscal year in which the contract 

6 is in effect, and for the estimated costs associated with a necessary ter7 mination of the contract; and 

8 (2) the executive agency determines that— 

9 (A) the need for the property or services is reasonably firm and 

10 continuing over the period of the contract; and 

11 (B) a multiyear contract will serve the best interests of the Fed12 eral Government by encouraging full and open competition or pro13 moting economy in administration, performance, and operation of 

14 the agency’s programs. 

15 (c) TERMINATION CLAUSE.—A multiyear contract entered into under the 

16 authority of this section shall include a clause that provides that the con17 tract shall be terminated if amounts are not made available for the continu18 ation of the contract in a fiscal year covered by the contract. Amounts avail19 able for paying termination costs shall remain available for that purpose 

20 until the costs associated with termination of the contract are paid. 

21 (d) CANCELLATION CEILING NOTICE.—Before a contract described in 

22 subsection (b) that contains a clause setting forth a cancellation ceiling in 

23 excess of $10,000,000 may be awarded, the executive agency shall give writ24 ten notification of the proposed contract and of the proposed cancellation 

25 ceiling for that contract to Congress. The contract may not be awarded until 

26 the end of the 30-day period beginning on the date of the notification. 

27 (e) CONTINGENCY CLAUSE FOR APPROPRIATION OF AMOUNTS.—A 

28 multiyear contract may provide that performance under the contract after 

29 the first year of the contract is contingent on the appropriation of amounts 

30 and (if the contract does so provide) that a cancellation payment shall be 

31 made to the contractor if the amounts are not appropriated. 

32 (f) OTHER LAW NOT AFFECTED.—This section does not modify or affect 

33 any other provision of law that authorizes multiyear contracts. 

34 § 3904. Contract authority for severable services contracts 

35 and multiyear contracts 

36 (a) COMPTROLLER GENERAL.—The Comptroller General may use avail37 able amounts to enter into contracts for the procurement of severable serv38 ices for a period that begins in one fiscal year and ends in the next fiscal 

39 year and to enter into multiyear contracts for the acquisition of property 

40 and nonaudit-related services to the same extent as executive agencies under 

41 sections 3902 and 3903 of this title. 


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1 (b) LIBRARY OF CONGRESS.—The Library of Congress may use available 

2 amounts to enter into contracts for the lease or procurement of severable 

3 services for a period that begins in one fiscal year and ends in the next fis4 cal year and to enter into multiyear contracts for the acquisition of property 

5 and services pursuant to sections 3902 and 3903 of this title. 

6 (c) CHIEF ADMINISTRATIVE OFFICER OF THE HOUSE OF REPRESENTA7 TIVES.—The Chief Administrative Officer of the House of Representatives 

8 may enter into— 

9 (1) contracts for the procurement of severable services for a period 

10 that begins in one fiscal year and ends in the next fiscal year to the 

11 same extent as the head of an executive agency under the authority of 

12 section 3902 of this title; and 

13 (2) multiyear contracts for the acquisitions of property and 

14 nonaudit-related services to the same extent as executive agencies 

15 under the authority of section 3903 of this title. 

16 (d) CONGRESSIONAL BUDGET OFFICE.—The Congressional Budget Office 

17 may use available amounts to enter into contracts for the procurement of 

18 severable services for a period that begins in one fiscal year and ends in 

19 the next fiscal year and may enter into multiyear contracts for the acquisi20 tion of property and services to the same extent as executive agencies under 

21 the authority of sections 3902 and 3903 of this title. 

22 (e) SECRETARY AND SERGEANT AT ARMS AND DOORKEEPER OF THE

23 SENATE.—Subject to regulations prescribed by the Committee on Rules and 

24 Administration of the Senate, the Secretary and the Sergeant at Arms and 

25 Doorkeeper of the Senate 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 and under the same conditions as the head of an executive 

29 agency under the authority of section 3902 of this title; and 

30 (2) multiyear contracts for the acquisition of property and services 

31 to the same extent and under the same conditions as executive agencies 

32 under the authority of section 3903 of this title. 

33 (f) CAPITOL POLICE.—The United States Capitol Police may enter into— 

34 (1) contracts for the procurement of severable services for a period 

35 that begins in one fiscal year and ends in the next fiscal year to the 

36 same extent as the head of an executive agency under the authority of 

37 section 3902 of this title; and 

38 (2) multiyear contracts for the acquisitions of property and 

39 nonaudit-related services to the same extent as executive agencies 

40 under the authority of section 3903 of this title. 


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1 (g) ARCHITECT OF THE CAPITOL.—The Architect of the Capitol may 

2 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 as the head of an executive agency under the authority of 

6 section 3902 of this title; and 

7 (2) multiyear contracts for the acquisitions of property and 

8 nonaudit-related services to the same extent as executive agencies 

9 under the authority of section 3903 of this title. 

10 (h) SECRETARY OF THE SMITHSONIAN INSTITUTION.—The Secretary of 

11 the Smithsonian Institution may enter into— 

12 (1) contracts for the procurement of severable services for a period 

13 that begins in one fiscal year and ends in the next fiscal year under 

14 the authority of section 3902 of this title; and 

15 (2) multiyear contracts for the acquisition of property and services 

16 under the authority of section 3903 of this title. 

17 § 3905. Cost contracts 

18 (a) COST-PLUS-A-PERCENTAGE-OF-COST CONTRACTS DISALLOWED.— 

19 The cost-plus-a-percentage-of-cost system of contracting shall not be used. 

20 (b) COST-PLUS-A-FIXED-FEE CONTRACTS.— 

21 (1) IN GENERAL.—Except as provided in paragraphs (2) and (3), the 

22 fee in a cost-plus-a-fixed-fee contract shall not exceed 10 percent of the 

23 estimated cost of the contract, not including the fee, as determined by 

24 the agency head at the time of entering into the contract. 

25 (2) EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK.—The 

26 fee in a cost-plus-a-fixed-fee contract for experimental, developmental, 

27 or research work shall not exceed 15 percent of the estimated cost of 

28 the contract, not including the fee. 

29 (3) ARCHITECTURAL OR ENGINEERING SERVICES.—The fee in a 

30 cost-plus-a-fixed-fee contract for architectural or engineering services 

31 relating to any public works or utility project may include the contrac32 tor’s costs and shall not exceed 6 percent of the estimated cost, not 

33 including the fee, as determined by the agency head at the time of en34 tering into the contract, of the project to which the fee applies. 

35 (c) NOTIFICATION.—All cost and cost-plus-a-fixed-fee contracts shall pro36 vide for advance notification by the contractor to the procuring agency of 

37 any subcontract on a cost-plus-a-fixed-fee basis and of any fixed-price sub38 contract or purchase order which exceeds in dollar amount either the sim39 plified acquisition threshold or 5 percent of the total estimated cost of the 

40 prime contract. 


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1 (d) RIGHT TO AUDIT.—A procuring agency, through any authorized rep2 resentative thereof, has the right to inspect the plans and to audit the books 

3 and records of a prime contractor or subcontractor engaged in the perform4 ance of a cost or cost-plus-a-fixed-fee contract. 

5 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. 

6 § 4101. Definitions 

7 In this chapter: 

8 (1) DELIVERY ORDER CONTRACT.—The term ‘‘delivery order con9 tract’’ means a contract for property that— 

10 (A) does not procure or specify a firm quantity of property 

11 (other than a minimum or maximum quantity); and 

12 (B) provides for the issuance of orders for the delivery of prop13 erty during the period of the contract. 

14 (2) TASK ORDER CONTRACT.—The term ‘‘task order contract’’ 

15 means a contract for services that— 

16 (A) does not procure or specify a firm quantity of services 

17 (other than a minimum or maximum quantity); and 

18 (B) provides for the issuance of orders for the performance of 

19 tasks during the period of the contract. 

20 § 4102. Authorities or responsibilities not affected 

21 This chapter does not modify or supersede, and is not intended to impair 

22 or restrict, authorities or responsibilities under sections 1101 to 1104 of 

23 title 40. 

24 § 4103. General authority 

25 (a) AUTHORITY TO AWARD.—Subject to the requirements of this section, 

26 section 4106 of this title, and other applicable law, the head of an executive 

27 agency may enter into a task or delivery order contract for procurement of 

28 services or property. 

29 (b) SOLICITATION.—The solicitation for a task or delivery order contract 

30 shall include— 

31 (1) the period of the contract, including the number of options to 

32 extend the contract and the period for which the contract may be ex33 tended under each option; 

34 (2) the maximum quantity or dollar value of the services or property 

35 to be procured under the contract; and 


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1 (3) a statement of work, specifications, or other description that rea2 sonably describes the general scope, nature, complexity, and purposes 

3 of the services or property to be procured under the contract. 

4 (c) APPLICABILITY OF RESTRICTION ON USE OF NONCOMPETITIVE PRO5 CEDURES.—The head of an executive agency may use procedures other than 

6 competitive procedures to enter into a task or delivery order contract under 

7 this section only if an exception in section 3303(a) of this title applies to 

8 the contract and the use of those procedures is approved in accordance with 

9 section 3303(d) of this title. 

10 (d) SINGLE AND MULTIPLE CONTRACT AWARDS.— 

11 (1) EXERCISE OF AUTHORITY.—The head of an executive agency 

12 may exercise the authority provided in this section— 

13 (A) to award a single task or delivery order contract; or 

14 (B) if the solicitation states that the head of the executive agen15 cy has the option to do so, to award separate task or delivery 

16 order contracts for the same or similar services or property to 2 

17 or more sources. 

18 (2) DETERMINATION NOT REQUIRED.—No determination under sec19 tion 3302 of this title is required for an award of multiple task or de20 livery order contracts under paragraph (1)(B). 

21 (3) 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 


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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(d) 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.— 


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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) LIMITATION ON CONTRACT PERIOD.—The period of a task order con9 tract entered into under this section, including all periods of extensions of 

10 the contract under options, modifications, or otherwise, may not exceed 5 

11 years unless a longer period is specifically authorized in a law that is appli12 cable to the contract. 

13 (d) CONTENT OF NOTICE.—The notice required by section 1707 of this 

14 title and section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall 

15 reasonably and fairly describe the general scope, magnitude, and duration 

16 of the proposed task order contract in a manner that would reasonably en17 able a potential offeror to decide whether to request the solicitation and con18 sider submitting an offer. 

19 (e) REQUIRED CONTENT OF SOLICITATION AND CONTRACT.— 

20 (1) SOLICITATION.—The solicitation shall include the information 

21 (regarding services) described in section 4103(b) of this title. 

22 (2) CONTRACT.—A task order contract entered into under this sec23 tion shall contain the same information that is required by paragraph 

24 (1) to be included in the solicitation of offers for that contract. 

25 (f) MULTIPLE AWARDS.— 

26 (1) AUTHORITY TO MAKE MULTIPLE AWARDS.—On the basis of one 

27 solicitation, the head of an executive agency may award separate task 

28 order contracts under this section for the same or similar services to 

29 2 or more sources if the solicitation states that the head of the execu30 tive agency has the option to do so. 

31 (2) CONTENT OF SOLICITATION.—In the case of a task order con32 tract for advisory and assistance services to be entered into under this 

33 section, if the contract period is to exceed 3 years and the contract 

34 amount is estimated to exceed $10,000,000 (including all options), the 

35 solicitation shall— 

36 (A) provide for a multiple award authorized under paragraph 

37 (1); and 

38 (B) include a statement that the head of the executive agency 

39 may also elect to award only one task order contract if the head 

40 of the executive agency determines in writing that only one of the 


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1 offerors is capable of providing the services required at the level 

2 of quality required. 

3 (3) NONAPPLICATION.—Paragraph (2) does not apply in the case of 

4 a solicitation for which the head of the executive agency concerned de5 termines in writing that, because the services required under the con6 tract are unique or highly specialized, it is not practicable to award 

7 more than one contract. 

8 (g) CONTRACT MODIFICATIONS.— 

9 (1) INCREASE IN SCOPE, PERIOD, OR MAXIMUM VALUE OF CONTRACT

10 ONLY BY MODIFICATION OF CONTRACT.—A task order may not in11 crease the scope, period, or maximum value of the task order contract 

12 under which the order is issued. The scope, period, or maximum value 

13 of the contract may be increased only by modification of the contract. 

14 (2) USE OF COMPETITIVE PROCEDURES.—Unless use of procedures 

15 other than competitive procedures is authorized by an exception in sec16 tion 3303(a) of this title and approved in accordance with section 

17 3303(d) of this title, competitive procedures shall be used for making 

18 such a modification. 

19 (3) NOTICE.—Notice regarding the modification shall be provided in 

20 accordance with section 1707 of this title and section 8(e) of the Small 

21 Business Act (15 U.S.C. 637(e)). 

22 (h) CONTRACT EXTENSIONS.— 

23 (1) WHEN CONTRACT MAY BE EXTENDED.—Notwithstanding the 

24 limitation on the contract period set forth in subsection (c) or in a so25 licitation or contract pursuant to subsection (f), a contract entered into 

26 by the head of an executive agency under this section may be extended 

27 on a sole-source basis for a period not exceeding 6 months if the head 

28 of the executive agency determines that— 

29 (A) the award of a follow-on contract has been delayed by cir30 cumstances that were not reasonably foreseeable at the time the 

31 initial contract was entered into; and 

32 (B) the extension is necessary to ensure continuity of the receipt 

33 of services pending the award of, and commencement of perform34 ance under, the follow-on contract. 

35 (2) LIMIT OF ONE EXTENSION.—A task order contract may be ex36 tended under paragraph (1) only once and only in accordance with the 

37 limitations and requirements of this subsection. 

38 (i) INAPPLICABILITY TO CERTAIN CONTRACTS.—This section does not 

39 apply to a contract for the acquisition of property or services that includes 

40 acquisition of advisory and assistance services if the head of the executive 

41 agency entering into the contract determines that, under the contract, adviVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 sory and assistance services are necessarily incident to, and not a significant 

2 component of, the contract. 

3 § 4106. Orders 

4 (a) APPLICATION.—This section applies to task and delivery order con5 tracts entered into under sections 4103 and 4105 of this title. 

6 (b) ACTIONS NOT REQUIRED FOR ISSUANCE OF ORDERS.—The following 

7 actions are not required for issuance of a task or delivery order under a 

8 task or delivery order contract: 

9 (1) A separate notice for the order under section 1707 of this title 

10 or section 8(e) of the Small Business Act (15 U.S.C. 637(e)). 

11 (2) Except as provided in subsection (c), a competition (or a waiver 

12 of competition approved in accordance with section 3303(d) of this 

13 title) that is separate from that used for entering into the contract. 

14 (c) MULTIPLE AWARD CONTRACTS.—When multiple contracts are award15 ed under section 4103(d)(1)(B) or 4105(f) of this title, all contractors 

16 awarded the contracts shall be provided a fair opportunity to be considered, 

17 pursuant to procedures set forth in the contracts, for each task or delivery 

18 order in excess of $2,500 that is to be issued under any of the contracts, 

19 unless— 

20 (1) the executive agency’s need for the services or property ordered 

21 is of such unusual urgency that providing the opportunity to all of 

22 those contractors would result in unacceptable delays in fulfilling that 

23 need; 

24 (2) only one of those contractors is capable of providing the services 

25 or property required at the level of quality required because the services 

26 or property ordered are unique or highly specialized; 

27 (3) the task or delivery order should be issued on a sole-source basis 

28 in the interest of economy and efficiency because it is a logical follow29 on to a task or delivery order already issued on a competitive basis; 

30 or 

31 (4) it is necessary to place the order with a particular contractor to 

32 satisfy a minimum guarantee. 

33 (d) STATEMENT OF WORK.—A task or delivery order shall include a 

34 statement of work that clearly specifies all tasks to be performed or prop35 erty to be delivered under the order. 

36 (e) PROTESTS.—A protest is not authorized in connection with the 

37 issuance or proposed issuance of a task or delivery order except for a pro38 test on the ground that the order increases the scope, period, or maximum 

39 value of the contract under which the order is issued. 

40 (f) TASK AND DELIVERY ORDER OMBUDSMAN.— 


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1 (1) APPOINTMENT OR DESIGNATION AND RESPONSIBILITIES.—The 

2 head of each executive agency who awards multiple task or delivery 

3 order contracts under section 4103(d)(1)(B) or 4105(f) of this title 

4 shall appoint or designate a task and delivery order ombudsman who 

5 shall be responsible for reviewing complaints from the contractors on 

6 those contracts and ensuring that all of the contractors are afforded 

7 a fair opportunity to be considered for task or delivery orders when re8 quired under subsection (c). 

9 (2) WHO IS ELIGIBLE.—The task and delivery order ombudsman 

10 shall be a senior agency official who is independent of the contracting 

11 officer for the contracts and may be the executive agency’s advocate 

12 for competition. 

13 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. 

14 § 4301. Definitions 

15 In this chapter: 

16 (1) COMPENSATION.—The term ‘‘compensation’’, for a fiscal year, 

17 means the total amount of wages, salary, bonuses, and deferred com18 pensation for the fiscal year, whether paid, earned, or otherwise accru19 ing, as recorded in an employer’s cost accounting records for the fiscal 

20 year. 

21 (2) COVERED CONTRACT.—The term ‘‘covered contract’’ means a 

22 contract for an amount in excess of $500,000 that is entered into by 

23 an executive agency, except that the term does not include a fixed-price 

24 contract without cost incentives or any firm fixed-price contract for the 

25 purchase of commercial items. 

26 (3) FISCAL YEAR.—The term ‘‘fiscal year’’ means a fiscal year estab27 lished by a contractor for accounting purposes. 

28 (4) SENIOR EXECUTIVE.—The term ‘‘senior executive’’, with respect 

29 to a contractor, means the 5 most highly compensated employees in 

30 management positions at each home office and each segment of the 

31 contractor. 

32 § 4302. Adjustment of threshold amount of covered contract 

33 Effective on October 1 of each year that is divisible by 5, the amount 

34 set forth in section 4301(2) of this title shall be adjusted to the equivalent 


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1 amount in constant fiscal year 1994 dollars. An adjusted amount that is 

2 not evenly divisible by $50,000 shall be rounded to the nearest multiple of 

3 $50,000. If an amount is evenly divisible by $25,000 but is not evenly divis4 ible by $50,000, the amount shall be rounded to the next higher multiple 

5 of $50,000. 

6 § 4303. Effect of submission of unallowable costs 

7 (a) INDIRECT COST THAT VIOLATES FEDERAL ACQUISITION REGULA8 TION COST PRINCIPLE.—An executive agency shall require that a covered 

9 contract provide that if the contractor submits to the executive agency a 

10 proposal for settlement of indirect costs incurred by the contractor for any 

11 period after those costs have been accrued and if that proposal includes the 

12 submission of a cost that is unallowable because the cost violates a cost 

13 principle in the Federal Acquisition Regulation or an executive agency sup14 plement to the Federal Acquisition Regulation, the cost shall be disallowed. 

15 (b) PENALTY FOR VIOLATION OF COST PRINCIPLE.— 

16 (1) UNALLOWABLE COST IN PROPOSAL.—If the executive agency de17 termines that a cost submitted by a contractor in its proposal for set18 tlement is expressly unallowable under a cost principle referred to in 

19 subsection (a) that defines the allowability of specific selected costs, the 

20 executive agency shall assess a penalty against the contractor in an 

21 amount equal to— 

22 (A) the amount of the disallowed cost allocated to covered con23 tracts for which a proposal for settlement of indirect costs has 

24 been submitted; plus 

25 (B) interest (to be computed based on provisions in the Federal 

26 Acquisition Regulation) to compensate the Federal Government 

27 for the use of the amount which a contractor has been paid in ex28 cess of the amount to which the contractor was entitled. 

29 (2) COST DETERMINED TO BE UNALLOWABLE BEFORE PROPOSAL

30 SUBMITTED.—If the executive agency determines that a proposal for 

31 settlement of indirect costs submitted by a contractor includes a cost 

32 determined to be unallowable in the case of that contractor before the 

33 submission of that proposal, the executive agency shall assess a penalty 

34 against the contractor in an amount equal to 2 times the amount of 

35 the disallowed cost allocated to covered contracts for which a proposal 

36 for settlement of indirect costs has been submitted. 

37 (c) WAIVER OF PENALTY.—The Federal Acquisition Regulation shall pro38 vide for a penalty under subsection (b) to be waived in the case of a con39 tractor’s proposal for settlement of indirect costs when— 


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1 (1) the contractor withdraws the proposal before the formal initiation 

2 of an audit of the proposal by the Federal Government and resubmits 

3 a revised proposal; 

4 (2) the amount of unallowable costs subject to the penalty is insig5 nificant; or 

6 (3) the contractor demonstrates, to the contracting officer’s satisfac7 tion, that— 

8 (A) it has established appropriate policies and personnel train9 ing and an internal control and review system that provide assur10 ances that unallowable costs subject to penalties are precluded 

11 from being included in the contractor’s proposal for settlement of 

12 indirect costs; and 

13 (B) the unallowable costs subject to the penalty were inadvert14 ently incorporated into the proposal. 

15 (d) APPLICABILITY OF CONTRACT DISPUTES PROCEDURE.—An action of 

16 an executive agency under subsection (a) or (b)— 

17 (1) shall be considered a final decision for the purposes of section 

18 6903 of this title; and 

19 (2) is appealable in the manner provided in section 6904(a) of this 

20 title. 

21 § 4304. Specific costs not allowable 

22 (a) SPECIFIC COSTS.—The following costs are not allowable under a cov23 ered contract: 

24 (1) Costs of entertainment, including amusement, diversion, and so25 cial activities, and any costs directly associated with those costs (such 

26 as tickets to shows or sports events, meals, lodging, rentals, transpor27 tation, and gratuities). 

28 (2) Costs incurred to influence (directly or indirectly) legislative ac29 tion on any matter pending before Congress, a State legislature, or a 

30 legislative body of a political subdivision of a State. 

31 (3) Costs incurred in defense of any civil or criminal fraud pro32 ceeding or similar proceeding (including filing of any false certification) 

33 brought by the Federal Government where the contractor is found lia34 ble or had pleaded nolo contendere to a charge of fraud or similar pro35 ceeding (including filing of a false certification). 

36 (4) Payments of fines and penalties resulting from violations of, or 

37 failure to comply with, Federal, State, local, or foreign laws and regula38 tions, except when incurred as a result of compliance with specific 

39 terms and conditions of the contract or specific written instructions 

40 from the contracting officer authorizing in advance those payments in 


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1 accordance with applicable provisions of the Federal Acquisition Regu2 lation. 

3 (5) Costs of membership in any social, dining, or country club or or4 ganization. 

5 (6) Costs of alcoholic beverages. 

6 (7) Contributions or donations, regardless of the recipient. 

7 (8) Costs of advertising designed to promote the contractor or its 

8 products. 

9 (9) Costs of promotional items and memorabilia, including models, 

10 gifts, and souvenirs. 

11 (10) Costs for travel by commercial aircraft that exceed the amount 

12 of the standard commercial fare. 

13 (11) Costs incurred in making any payment (commonly known as a 

14 ‘‘golden parachute payment’’) that is— 

15 (A) in an amount in excess of the normal severance pay paid 

16 by the contractor to an employee on termination of employment; 

17 and 

18 (B) paid to the employee contingent on, and following, a change 

19 in management control over, or ownership of, the contractor or a 

20 substantial portion of the contractor’s assets. 

21 (12) Costs of commercial insurance that protects against the costs 

22 of the contractor for correction of the contractor’s own defects in mate23 rials or workmanship. 

24 (13) Costs of severance pay paid by the contractor to foreign nation25 als employed by the contractor under a service contract performed out26 side the United States, to the extent that the amount of severance pay 

27 paid in any case exceeds the amount paid in the industry involved 

28 under the customary or prevailing practice for firms in that industry 

29 providing similar services in the United States, as determined under 

30 the Federal Acquisition Regulation. 

31 (14) Costs of severance pay paid by the contractor to a foreign na32 tional employed by the contractor under a service contract performed 

33 in a foreign country if the termination of the employment of the foreign 

34 national is the result of the closing of, or the curtailment of activities 

35 at, a Federal Government facility in that country at the request of the 

36 government of that country. 

37 (15) Costs incurred by a contractor in connection with any criminal, 

38 civil, or administrative proceeding commenced by the Federal Govern39 ment or a State, to the extent provided in section 4310 of this title. 

40 (16) Costs of compensation of senior executives of contractors for a 

41 fiscal year, regardless of the contract funding source, to the extent that 


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1 the compensation exceeds the benchmark compensation amount deter2 mined applicable for the fiscal year by the Administrator under section 

3 1127 of this title. 

4 (b) WAIVER OF SEVERANCE PAY RESTRICTIONS FOR FOREIGN NATION5 ALS.— 

6 (1) EXECUTIVE AGENCY DETERMINATION.—Pursuant to the Federal 

7 Acquisition Regulation and subject to the availability of appropriations, 

8 an executive agency, in awarding a covered contract, may waive the ap9 plication of paragraphs (13) and (14) of subsection (a) to that contract 

10 if the executive agency determines that— 

11 (A) the application of those provisions to that contract would 

12 adversely affect the continuation of a program, project, or activity 

13 that provides significant support services for employees of the ex14 ecutive agency posted outside the United States; 

15 (B) the contractor has taken (or has established plans to take) 

16 appropriate actions within the contractor’s control to minimize the 

17 amount and number of incidents of the payment of severance pay 

18 by the contractor to employees under the contract who are foreign 

19 nationals; and 

20 (C) the payment of severance pay is necessary to comply with 

21 a law that is generally applicable to a significant number of busi22 nesses in the country in which the foreign national receiving the 

23 payment performed services under the contract or is necessary to 

24 comply with a collective bargaining agreement. 

25 (2) SOLICITATION TO INCLUDE STATEMENT ABOUT WAIVER.—An ex26 ecutive agency shall include in the solicitation for a covered contract 

27 a statement indicating— 

28 (A) that a waiver has been granted under paragraph (1) for the 

29 contract; or 

30 (B) whether the executive agency will consider granting a waiver 

31 and, if the executive agency will consider granting a waiver, the 

32 criteria to be used in granting the waiver. 

33 (3) DETERMINATION TO BE MADE BEFORE CONTRACT AWARDED.— 

34 An executive agency shall make the final determination whether to 

35 grant a waiver under paragraph (1) with respect to a covered contract 

36 before award of the contract. 

37 (c) ESTABLISHMENT OF DEFINITIONS, EXCLUSIONS, LIMITATIONS, AND

38 QUALIFICATIONS.—The provisions of the Federal Acquisition Regulation 

39 implementing this chapter may establish appropriate definitions, exclusions, 

40 limitations, and qualifications. A submission by a contractor of costs that 

41 are incurred by the contractor and that are claimed to be allowable under 


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1 Department of Energy management and operating contracts shall be consid2 ered a proposal for settlement of indirect costs incurred by the contractor 

3 for any period after those costs have been accrued. 

4 § 4305. Required regulations 

5 (a) IN GENERAL.—The Federal Acquisition Regulation shall contain pro6 visions on the allowability of contractor costs. Those provisions shall define 

7 in detail and in specific terms the costs that are unallowable, in whole or 

8 in part, under covered contracts. 

9 (b) SPECIFIC ITEMS.—The regulations shall, at a minimum, clarify the 

10 cost principles applicable to contractor costs of the following: 

11 (1) Air shows. 

12 (2) Membership in civic, community, and professional organizations. 

13 (3) Recruitment. 

14 (4) Employee morale and welfare. 

15 (5) Actions to influence (directly or indirectly) executive branch ac16 tion on regulatory and contract matters (other than costs incurred in 

17 regard to contract proposals pursuant to solicited or unsolicited bids). 

18 (6) Community relations. 

19 (7) Dining facilities. 

20 (8) Professional and consulting services, including legal services. 

21 (9) Compensation. 

22 (10) Selling and marketing. 

23 (11) Travel. 

24 (12) Public relations. 

25 (13) Hotel and meal expenses. 

26 (14) Expense of corporate aircraft. 

27 (15) Company-furnished automobiles. 

28 (16) Advertising. 

29 (17) Conventions. 

30 (c) ADDITIONAL REQUIREMENTS.— 

31 (1) WHEN QUESTIONED COSTS MAY BE RESOLVED.—The Federal 

32 Acquisition Regulation shall require that a contracting officer not re33 solve any questioned costs until the contracting officer has obtained— 

34 (A) adequate documentation of those costs; and 

35 (B) the opinion of the contract auditor on the allowability of 

36 those costs. 

37 (2) PRESENCE OF CONTRACT AUDITOR.—The Federal Acquisition 

38 Regulation shall provide that, to the maximum extent practicable, a 

39 contract auditor be present at any negotiation or meeting with the con40 tractor regarding a determination of the allowability of indirect costs 

41 of the contractor. 


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1 (3) SETTLEMENT TO REFLECT AMOUNT OF INDIVIDUAL QUES2 TIONED COSTS.—The Federal Acquisition Regulation shall require that 

3 all categories of costs designated in the report of a contract auditor as 

4 questioned with respect to a proposal for settlement be resolved in a 

5 manner so that the amount of the individual questioned costs that are 

6 paid will be reflected in the settlement. 

7 § 4306. Applicability of regulations to subcontractors 

8 The regulations referred to in sections 4304 and 4305(a) and (b) of this 

9 title shall require prime contractors of a covered contract, to the maximum 

10 extent practicable, to apply the provisions of those regulations to all sub11 contractors of the covered contract. 

12 § 4307. Contractor certification 

13 (a) CONTENT AND FORM.—A proposal for settlement of indirect costs ap14 plicable to a covered contract shall include a certification by an official of 

15 the contractor that, to the best of the certifying official’s knowledge and be16 lief, all indirect costs included in the proposal are allowable. The certifi17 cation shall be in a form prescribed in the Federal Acquisition Regulation. 

18 (b) WAIVER.—An executive agency may, in an exceptional case, waive the 

19 requirement for certification under subsection (a) in the case of a contract 

20 if the agency— 

21 (1) determines that it would be in the interest of the Federal Gov22 ernment to waive the certification; and 

23 (2) states in writing the reasons for the determination and makes 

24 the determination available to the public. 

25 § 4308. Penalties for submission of cost known to be unal26 lowable 

27 The submission to an executive agency of a proposal for settlement of 

28 costs for any period after those costs have been accrued that includes a cost 

29 that is expressly specified by statute or regulation as being unallowable, 

30 with the knowledge that the cost is unallowable, is subject to section 287 

31 of title 18 and section 3729 of title 31. 

32 § 4309. Burden of proof on contractor 

33 In a proceeding before a board of contract appeals, the United States 

34 Court of Federal Claims, or any other Federal court in which the reason35 ableness of indirect costs for which a contractor seeks reimbursement from 

36 the Federal Government is in issue, the burden of proof is on the contractor 

37 to establish that those costs are reasonable. 

38 § 4310. Proceeding costs not allowable 

39 (a) DEFINITIONS.—In this section: 


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1 (1) COSTS.—The term ‘‘costs’’, with respect to a proceeding, means 

2 all costs incurred by a contractor, whether before or after the com3 mencement of the proceeding, including— 

4 (A) administrative and clerical expenses; 

5 (B) the cost of legal services, including legal services performed 

6 by an employee of the contractor; 

7 (C) the cost of the services of accountants and consultants re8 tained by the contractor; and 

9 (D) the pay of directors, officers, and employees of the con10 tractor for time devoted by those directors, officers, and employees 

11 to the proceeding. 

12 (2) PENALTY.—The term ‘‘penalty’’ does not include restitution, re13 imbursement, or compensatory damages. 

14 (3) PROCEEDING.—The term ‘‘proceeding’’ includes an investigation. 

15 (b) IN GENERAL.—Except as otherwise provided in this section, costs in16 curred by a contractor in connection with a criminal, civil, or administrative 

17 proceeding commenced by the Federal Government or a State are not allow18 able as reimbursable costs under a covered contract if the proceeding— 

19 (1) relates to a violation of, or failure to comply with, a Federal or 

20 State statute or regulation; and 

21 (2) results in a disposition described in subsection (c). 

22 (c) COVERED DISPOSITIONS.—A disposition referred to in subsection 

23 (b)(2) is any of the following: 

24 (1) In a criminal proceeding, a conviction (including a conviction 

25 pursuant to a plea of nolo contendere) by reason of the violation or 

26 failure referred to in subsection (b). 

27 (2) In a civil or administrative proceeding involving an allegation of 

28 fraud or similar misconduct, a determination of contractor liability on 

29 the basis of the violation or failure referred to in subsection (b). 

30 (3) In any civil or administrative proceeding, the imposition of a 

31 monetary penalty by reason of the violation or failure referred to in 

32 subsection (b). 

33 (4) A final decision to do any of the following, by reason of the viola34 tion or failure referred to in subsection (b): 

35 (A) Debar or suspend the contractor. 

36 (B) Rescind or void the contract. 

37 (C) Terminate the contract for default. 

38 (5) A disposition of the proceeding by consent or compromise if the 

39 disposition could have resulted in a disposition described in paragraph 

40 (1), (2), (3), or (4). 


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1 (d) COSTS ALLOWED BY SETTLEMENT AGREEMENT IN PROCEEDING

2 COMMENCED BY FEDERAL GOVERNMENT.—In the case of a proceeding re3 ferred to in subsection (b) that is commenced by the Federal Government 

4 and is resolved by consent or compromise pursuant to an agreement entered 

5 into by a contractor and the Federal Government, the costs incurred by the 

6 contractor in connection with the proceeding that are otherwise not allow7 able as reimbursable costs under subsection (b) may be allowed to the extent 

8 specifically provided in that agreement. 

9 (e) COSTS SPECIFICALLY AUTHORIZED BY EXECUTIVE AGENCY IN PRO10 CEEDING COMMENCED BY STATE.—In the case of a proceeding referred to 

11 in subsection (b) that is commenced by a State, the executive agency that 

12 awarded the covered contract involved in the proceeding may allow the costs 

13 incurred by the contractor in connection with the proceeding as reimburs14 able costs if the executive agency determines, in accordance with the Fed15 eral Acquisition Regulation, that the costs were incurred as a result of— 

16 (1) a specific term or condition of the contract; or 

17 (2) specific written instructions of the executive agency. 

18 (f) OTHER ALLOWABLE COSTS.— 

19 (1) IN GENERAL.—Except as provided in paragraph (3), costs in20 curred by a contractor in connection with a criminal, civil, or adminis21 trative proceeding commenced by the Federal Government or a State 

22 in connection with a covered contract may be allowed as reimbursable 

23 costs under the contract if the costs are not disallowable under sub24 section (b), but only to the extent provided in paragraph (2). 

25 (2) AMOUNT OF ALLOWABLE COSTS.— 

26 (A) MAXIMUM AMOUNT ALLOWED.—The amount of the costs al27 lowable under paragraph (1) in any case may not exceed the 

28 amount equal to 80 percent of the amount of the costs incurred, 

29 to the extent that the costs are determined to be otherwise allow30 able and allocable under the Federal Acquisition Regulation. 

31 (B) CONTENT OF REGULATIONS.—Regulations issued for the 

32 purpose of subparagraph (A) shall provide for appropriate consid33 eration of the complexity of procurement litigation, generally ac34 cepted principles governing the award of legal fees in civil actions 

35 involving the Federal Government as a party, and other factors as 

36 may be appropriate. 

37 (3) WHEN OTHERWISE ALLOWABLE COSTS ARE NOT ALLOWABLE.— 

38 In the case of a proceeding referred to in paragraph (1), contractor 

39 costs otherwise allowable as reimbursable costs under this subsection 

40 are not allowable if— 


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1 (A) the proceeding involves the same contractor misconduct al2 leged as the basis of another criminal, civil, or administrative pro3 ceeding; and 

4 (B) the costs of the other proceeding are not allowable under 

5 subsection (b). 

6 CHAPTER 45—CONTRACT FINANCING 

Sec. 

4501. Authority of executive agency. 

4502. Payment. 

4503. Security for advance payments. 

4504. Conditions for progress payments. 

4505. Payments for commercial items. 

4506. Action in case of fraud. 

7 § 4501. Authority of executive agency 

8 An executive agency may— 

9 (1) make advance, partial, progress or other payments under con10 tracts for property or services made by the agency; and 

11 (2) insert in solicitations for procurement of property or services a 

12 provision limiting to small business concerns advance or progress pay13 ments. 

14 § 4502. Payment 

15 (a) BASIS FOR PAYMENT.—When practicable, payments under section 

16 4501 of this title shall be made on any of the following bases: 

17 (1) Performance measured by objective, quantifiable methods such as 

18 delivery of acceptable items, work measurement, or statistical process 

19 controls. 

20 (2) Accomplishment of events defined in the program management 

21 plan. 

22 (3) Other quantifiable measures of results. 

23 (b) PAYMENT AMOUNT.—Payments made under section 4501 of this title 

24 may not exceed the unpaid contract price. 

25 § 4503. Security for advance payments 

26 Advance payments under section 4501 of this title may be made only on 

27 adequate security and a determination by the agency head that to do so 

28 would be in the public interest. The security may be in the form of a lien 

29 in favor of the Federal Government on the property contracted for, on the 

30 balance in an account in which the payments are deposited, and on such 

31 of the property acquired for performance of the contract as the parties may 

32 agree. This lien shall be paramount to all other liens and is effective imme33 diately upon the first advancement of funds without filing, notice, or any 

34 other action by the Federal Government. 

35 § 4504. Conditions for progress payments 

36 (a) PAYMENT COMMENSURATE WITH WORK.—The executive agency shall 

37 ensure that a payment for work in progress (including materials, labor, and 


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1 other items) under a contract of an executive agency that provides for those 

2 payments is commensurate with the work accomplished that meets stand3 ards established under the contract. The contractor shall provide informa4 tion and evidence the executive agency determines is necessary to permit the 

5 executive agency to carry out this subsection. 

6 (b) LIMITATION.—The executive agency shall ensure that progress pay7 ments referred to in subsection (a) are not made for more than 80 percent 

8 of the work accomplished under the contract as long as the executive agency 

9 has not made the contractual terms, specifications, and price definite. 

10 (c) APPLICATION.—This section applies to a contract in an amount great11 er than $25,000. 

12 § 4505. Payments for commercial items 

13 (a) TERMS AND CONDITIONS FOR PAYMENTS.—Payments under section 

14 4501 of this title for commercial items may be made under terms and condi15 tions that the head of the executive agency determines are appropriate or 

16 customary in the commercial marketplace and are in the best interests of 

17 the Federal Government. 

18 (b) SECURITY FOR PAYMENTS.—The head of the executive agency shall 

19 obtain adequate security for the payments. If the security is in the form 

20 of a lien in favor of the Federal Government, the lien is paramount to all 

21 other liens and is effective immediately on the first payment, without filing, 

22 notice, or other action by the Federal Government. 

23 (c) LIMITATION ON ADVANCE PAYMENTS.—Advance payments made 

24 under section 4501 of this title for commercial items may include payments, 

25 in a total amount not more than 15 percent of the contract price, in ad26 vance of any performance of work under the contract. 

27 (d) NONAPPLICATION OF CERTAIN CONDITIONS.—The conditions of sec28 tions 4503 and 4504 of this title need not be applied if they would be incon29 sistent, as determined by the head of the executive agency, with commercial 

30 terms and conditions pursuant to this section. 

31 § 4506. Action in case of fraud 

32 (a) DEFINITION.—In this section, the term ‘‘remedy coordination offi33 cial’’, with respect to an executive agency, means the individual or entity 

34 in that executive agency who coordinates within that executive agency the 

35 administration of criminal, civil, administrative, and contractual remedies 

36 resulting from investigations of fraud or corruption related to procurement 

37 activities. 

38 (b) RECOMMENDATION TO REDUCE OR SUSPEND PAYMENTS.—In any 

39 case in which the remedy coordination official of an executive agency finds 

40 that there is substantial evidence that the request of a contractor for ad41 vance, partial, or progress payment under a contract awarded by that execuVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00125 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 tive agency is based on fraud, the remedy coordination official shall rec2 ommend that the executive agency reduce or suspend further payments to 

3 that contractor. 

4 (c) REDUCTION OR SUSPENSION OF PAYMENTS.—The head of an execu5 tive agency receiving a recommendation under subsection (b) in the case of 

6 a contractor’s request for payment under a contract shall determine whether 

7 there is substantial evidence that the request is based on fraud. On making 

8 an affirmative determination, the head of the executive agency may reduce 

9 or suspend further payments to the contractor under the contract. 

10 (d) EXTENT OF REDUCTION OR SUSPENSION.—The extent of any reduc11 tion or suspension of payments by an executive agency under subsection (c) 

12 on the basis of fraud shall be reasonably commensurate with the anticipated 

13 loss to the Federal Government resulting from the fraud. 

14 (e) WRITTEN JUSTIFICATION.—A written justification for each decision 

15 of the head of an executive agency whether to reduce or suspend payments 

16 under subsection (c), and for each recommendation received by the executive 

17 agency in connection with the decision, shall be prepared and be retained 

18 in the files of the executive agency. 

19 (f) NOTICE.—The head of each executive agency shall prescribe proce20 dures to ensure that, before the head of the executive agency decides to re21 duce or suspend payments in the case of a contractor under subsection (c), 

22 the contractor is afforded notice of the proposed reduction or suspension 

23 and an opportunity to submit matters to the executive agency in response 

24 to the proposed reduction or suspension. 

25 (g) REVIEW.—Not later than 180 days after the date on which the head 

26 of an executive agency reduces or suspends payments to a contractor under 

27 subsection (c), the remedy coordination official of the executive agency 

28 shall— 

29 (1) review the determination of fraud on which the reduction or sus30 pension is based; and 

31 (2) transmit a recommendation to the head of the executive agency 

32 whether the suspension or reduction should continue. 

33 (h) REPORT.—The head of each executive agency who receives rec34 ommendations made by the remedy coordination official of the executive 

35 agency to reduce or suspend payments under subsection (c) during a fiscal 

36 year shall prepare for that year a report that contains the recommendations, 

37 the actions taken on the recommendations and the reasons for those actions, 

38 and an assessment of the effects of those actions on the Federal Govern39 ment. The report shall be available to any Member of Congress on request. 


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1 (i) RESTRICTION ON DELEGATION.—The head of an executive agency 

2 may not delegate responsibilities under this section to an individual in a po3 sition below level IV of the Executive Schedule. 

4 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. 

5 § 4701. Determinations and decisions 

6 (a) INDIVIDUAL OR CLASS DETERMINATIONS AND DECISIONS AUTHOR7 IZED.— 

8 (1) IN GENERAL.—Determinations and decisions required to be made 

9 under this part by the head of an executive agency or provided in this 

10 part or chapters 1 to 11 of title 40 to be made by the Administrator 

11 of General Services or other agency head may be made for an indi12 vidual purchase or contract or, except for determinations or decisions 

13 made under sections 3105, 3301 to 3305(e), and 3307, chapter 37, and 

14 section 4702 of this title or to the extent expressly prohibited by an15 other law, for a class of purchases or contracts. 

16 (2) DELEGATION.—Except as provided in section 3303(a)(7) of this 

17 title, and except as provided in section 121(d)(1) and (2) of title 40 

18 with respect to the Administrator of General Services, the agency head, 

19 in the discretion and subject to the direction of the agency head, may 

20 delegate powers provided by this part or chapters 1 to 11 of title 40, 

21 including the making of determinations and decisions described in 

22 paragraph (1), to other officers or officials of the agency. 

23 (3) FINALITY.—The determinations and decisions are final. 

24 (b) WRITTEN FINDINGS.— 

25 (1) BASIS FOR CERTAIN DETERMINATIONS.—Each determination or 

26 decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this title 

27 shall be based on a written finding by the individual making the deter28 mination or decision. A finding under section 4503 or 4706(d)(2)(B) 

29 shall set out facts and circumstances that support the determination 

30 or decision. 

31 (2) FINALITY.—Each finding referred to in paragraph (1) is final. 

32 (3) MAINTAINING COPIES OF FINDINGS.—The head of an executive 

33 agency shall maintain for a period of not less than 6 years a copy of 

34 each finding referred to in paragraph (1) that is made by an individual 


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1 in that executive agency. The period begins on the date of the deter2 mination or decision to which the finding relates. 

3 § 4702. Prohibition on release of contractor proposals 

4 (a) DEFINITION.—In this section, the term ‘‘proposal’’ means a proposal, 

5 including a technical, management, or cost proposal, submitted by a con6 tractor in response to the requirements of a solicitation for a competitive 

7 proposal. 

8 (b) PROHIBITION.—A proposal in the possession or control of an execu9 tive agency may not be made available to any person under section 552 of 

10 title 5. 

11 (c) NONAPPLICATION.—Subsection (b) does not apply to a proposal that 

12 is set forth or incorporated by reference in a contract entered into between 

13 the agency and the contractor that submitted the proposal. 

14 § 4703. Validation of proprietary data restrictions 

15 (a) CONTRACT THAT PROVIDES FOR DELIVERY OF TECHNICAL DATA.— 

16 A contract for property or services entered into by an executive agency that 

17 provides for the delivery of technical data shall provide that— 

18 (1) a contractor or subcontractor at any tier shall be prepared to 

19 furnish to the contracting officer a written justification for any restric20 tion the contractor or subcontractor asserts on the right of the Federal 

21 Government to use the data; and 

22 (2) the contracting officer may review the validity of a restriction the 

23 contractor or subcontractor asserts under the contract on the right of 

24 the Federal Government to use technical data furnished to the Federal 

25 Government under the contract if the contracting officer determines 

26 that reasonable grounds exist to question the current validity of the as27 serted restriction and that the continued adherence to the asserted re28 striction by the Federal Government would make it impracticable to 

29 procure the item competitively at a later time. 

30 (b) CHALLENGE OF RESTRICTION.—If after a review the contracting offi31 cer determines that a challenge to the asserted restriction is warranted, the 

32 contracting officer shall provide written notice to the contractor or subcon33 tractor asserting the restriction. The notice shall state— 

34 (1) the grounds for challenging the asserted restriction; and 

35 (2) the requirement for a response within 60 days justifying the cur36 rent validity of the asserted restriction. 

37 (c) ADDITIONAL TIME FOR RESPONSES.—If a contractor or subcontractor 

38 asserting a restriction subject to this section submits to the contracting offi39 cer a written request showing the need for additional time to comply with 

40 the requirement to justify the current validity of the asserted restriction, the 


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1 contracting officer shall provide appropriate additional time to adequately 

2 permit the justification to be submitted. 

3 (d) MULTIPLE CHALLENGES.—If a party asserting a restriction receives 

4 notices of challenges to restrictions on technical data from more than one 

5 contracting officer, and notifies each contracting officer of the existence of 

6 more than one challenge, the contracting officer initiating the earliest chal7 lenge, after consultation with the party asserting the restriction and the 

8 other contracting officers, shall formulate a schedule of responses to each 

9 of the challenges that will afford the party asserting the restriction with an 

10 equitable opportunity to respond to each challenge. 

11 (e) DECISION ON VALIDITY OF ASSERTED RESTRICTION.— 

12 (1) NO RESPONSE SUBMITTED.—The contracting officer shall issue 

13 a decision pertaining to the validity of the asserted restriction if the 

14 contractor or subcontractor does not submit a response under sub15 section (b). 

16 (2) RESPONSE SUBMITTED.—Within 60 days of receipt of a justifica17 tion submitted in response to the notice provided pursuant to sub18 section (b), a contracting officer shall issue a decision or notify the 

19 party asserting the restriction of the time within which a decision will 

20 be issued. 

21 (f) CLAIM DEEMED CLAIM WITHIN CHAPTER 69.—A claim pertaining to 

22 the validity of the asserted restriction that is submitted in writing to a con23 tracting officer by a contractor or subcontractor at any tier is deemed to 

24 be a claim within the meaning of chapter 69 of this title. 

25 (g) FINAL DISPOSITION OF CHALLENGE.— 

26 (1) CHALLENGE IS SUSTAINED.—If the contracting officer’s chal27 lenge to the restriction on the right of the Federal Government to use 

28 technical data is sustained on final disposition— 

29 (A) the restriction is cancelled; and 

30 (B) if the asserted restriction is found not to be substantially 

31 justified, the contractor or subcontractor, as appropriate, is liable 

32 to the Federal Government for payment of the cost to the Federal 

33 Government of reviewing the asserted restriction and the fees and 

34 other expenses (as defined in section 2412(d)(2)(A) of title 28) in35 curred by the Federal Government in challenging the asserted re36 striction, unless special circumstances would make the payment 

37 unjust. 

38 (2) CHALLENGE NOT SUSTAINED.—If the contracting officer’s chal39 lenge to the restriction on the right of the Federal Government to use 

40 technical data is not sustained on final disposition, the Federal Govern41 ment— 


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1 (A) continues to be bound by the restriction; and 

2 (B) is liable for payment to the party asserting the restriction 

3 for fees and other expenses (as defined in section 2412(d)(2)(A) 

4 of title 28) incurred by the party asserting the restriction in de5 fending the asserted restriction if the challenge by the Federal 

6 Government is found not to be made in good faith. 

7 § 4704. Prohibition of contractors limiting subcontractor 

8 sales directly to Federal Government 

9 (a) CONTRACT RESTRICTIONS.—Each contract for the purchase of prop10 erty or services made by an executive agency shall provide that the con11 tractor will not— 

12 (1) enter into an agreement with a subcontractor under the contract 

13 that has the effect of unreasonably restricting sales by the subcon14 tractor directly to the Federal Government of any item or process (in15 cluding computer software) made or furnished by the subcontractor 

16 under the contract (or any follow-on production contract); or 

17 (2) otherwise act to restrict unreasonably the ability of a subcon18 tractor to make sales described in paragraph (1) to the Federal Gov19 ernment. 

20 (b) RIGHTS UNDER LAW PRESERVED.—This section does not prohibit a 

21 contractor from asserting rights it otherwise has under law. 

22 (c) INAPPLICABILITY TO CERTAIN CONTRACTS.—This section does not 

23 apply to a contract for an amount that is not greater than the simplified 

24 acquisition threshold. 

25 (d) INAPPLICABILITY WHEN GOVERNMENT TREATED SIMILARLY TO

26 OTHER PURCHASERS.—An agreement between the contractor in a contract 

27 for the acquisition of commercial items and a subcontractor under the con28 tract that restricts sales by the subcontractor directly to persons other than 

29 the contractor may not be considered to unreasonably restrict sales by that 

30 subcontractor to the Federal Government in violation of the provision in31 cluded in the contract pursuant to subsection (a) if the agreement does not 

32 result in the Federal Government being treated differently with regard to 

33 the restriction than any other prospective purchaser of the commercial items 

34 from that subcontractor. 

35 § 4705. Protection of contractor employees from reprisal for 

36 disclosure of certain information 

37 (a) DEFINITIONS.—In this section: 

38 (1) CONTRACT.—The term ‘‘contract’’ means a contract awarded by 

39 the head of an executive agency. 

40 (2) CONTRACTOR.—The term ‘‘contractor’’ means a person awarded 

41 a contract with an executive agency. 


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1 (3) INSPECTOR GENERAL.—The term ‘‘Inspector General’’ means an 

2 Inspector General appointed under the Inspector General Act of 1978 

3 (5 App. U.S.C.). 

4 (b) PROHIBITION OF REPRISALS.—An employee of a contractor may not 

5 be discharged, demoted, or otherwise discriminated against as a reprisal for 

6 disclosing to a Member of Congress or an authorized official of an executive 

7 agency or the Department of Justice information relating to a substantial 

8 violation of law related to a contract (including the competition for, or nego9 tiation of, a contract). 

10 (c) INVESTIGATION OF COMPLAINTS.—An individual who believes that the 

11 individual has been subjected to a reprisal prohibited by subsection (b) may 

12 submit a complaint to the Inspector General of the executive agency. Unless 

13 the Inspector General determines that the complaint is frivolous, the Inspec14 tor General shall investigate the complaint and, on completion of the inves15 tigation, submit a report of the findings of the investigation to the indi16 vidual, the contractor concerned, and the head of the agency. If the execu17 tive agency does not have an Inspector General, the duties of the Inspector 

18 General under this section shall be performed by an official designated by 

19 the head of the executive agency. 

20 (d) REMEDY AND ENFORCEMENT AUTHORITY.— 

21 (1) ACTIONS CONTRACTOR MAY BE ORDERED TO TAKE.—If the head 

22 of an executive agency determines that a contractor has subjected an 

23 individual to a reprisal prohibited by subsection (b), the head of the 

24 executive agency may take one or more of the following actions: 

25 (A) ABATEMENT.—Order the contractor to take affirmative ac26 tion to abate the reprisal. 

27 (B) REINSTATEMENT.—Order the contractor to reinstate the in28 dividual to the position that the individual held before the reprisal, 

29 together with the compensation (including back pay), employment 

30 benefits, and other terms and conditions of employment that 

31 would apply to the individual in that position if the reprisal had 

32 not been taken. 

33 (C) PAYMENT.—Order the contractor to pay the complainant an 

34 amount equal to the aggregate amount of all costs and expenses 

35 (including attorneys’ fees and expert witnesses’ fees) that the com36 plainant reasonably incurred for, or in connection with, bringing 

37 the complaint regarding the reprisal, as determined by the head 

38 of the executive agency. 

39 (2) ENFORCEMENT ORDER.—When a contractor fails to comply with 

40 an order issued under paragraph (1), the head of the executive agency 

41 shall file an action for enforcement of the order in the United States 


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1 district court for a district in which the reprisal was found to have oc2 curred. In an action brought under this paragraph, the court may 

3 grant appropriate relief, including injunctive relief and compensatory 

4 and exemplary damages. 

5 (3) REVIEW OF ENFORCEMENT ORDER.—A person adversely affected 

6 or aggrieved by an order issued under paragraph (1) may obtain review 

7 of the order’s conformance with this subsection, and regulations issued 

8 to carry out this section, in the United States court of appeals for a 

9 circuit in which the reprisal is alleged in the order to have occurred. 

10 A petition seeking review must be filed no more than 60 days after the 

11 head of the agency issues the order. Review shall conform to chapter 

12 7 of title 5. 

13 (e) SCOPE OF SECTION.—This section does not— 

14 (1) authorize the discharge of, demotion of, or discrimination against 

15 an employee for a disclosure other than a disclosure protected by sub16 section (b); or 

17 (2) modify or derogate from a right or remedy otherwise available 

18 to the employee. 

19 § 4706. Examination of facilities and records of contractor 

20 (a) DEFINITION.—In this section, the term ‘‘records’’ includes books, doc21 uments, accounting procedures and practices, and other data, regardless of 

22 type and regardless of whether the items are in written form, in the form 

23 of computer data, or in any other form. 

24 (b) AGENCY AUTHORITY.— 

25 (1) INSPECTION OF PLANT AND AUDIT OF RECORDS.—The head of 

26 an executive agency, acting through an authorized representative, may 

27 inspect the plant and audit the records of— 

28 (A) a contractor performing a cost-reimbursement, incentive, 

29 time-and-materials, labor-hour, or price-redeterminable contract, 

30 or any combination of those contracts, the executive agency makes 

31 under this part; and 

32 (B) a subcontractor performing a cost-reimbursement, incentive, 

33 time-and-materials, labor-hour, or price-redeterminable sub34 contract, or any combination of those subcontracts, under a con35 tract referred to in subparagraph (A). 

36 (2) EXAMINATION OF RECORDS.—The head of an executive agency, 

37 acting through an authorized representative, may, for the purpose of 

38 evaluating the accuracy, completeness, and currency of certified cost or 

39 pricing data required to be submitted pursuant to chapter 35 of this 

40 title with respect to a contract or subcontract, examine all records of 

41 the contractor or subcontractor related to— 


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1 (A) the proposal for the contract or subcontract; 

2 (B) the discussions conducted on the proposal; 

3 (C) pricing of the contract or subcontract; or 

4 (D) performance of the contract or subcontract. 

5 (c) SUBPOENA POWER.— 

6 (1) AUTHORITY TO REQUIRE THE PRODUCTION OF RECORDS.—The 

7 Inspector General of an executive agency appointed under section 3 or 

8 8G of the Inspector General Act of 1978 (5 App. U.S.C.) or, on re9 quest of the head of an executive agency, the Director of the Defense 

10 Contract Audit Agency (or any successor agency) of the Department 

11 of Defense or the Inspector General of the General Services Adminis12 tration may require by subpoena the production of records of a con13 tractor, access to which is provided for that executive agency by sub14 section (b). 

15 (2) ENFORCEMENT OF SUBPOENA.—A subpoena under paragraph 

16 (1), in the case of contumacy or refusal to obey, is enforceable by order 

17 of an appropriate United States district court. 

18 (3) AUTHORITY NOT DELEGABLE.—The authority provided by para19 graph (1) may not be delegated. 

20 (4) REPORT.—In the year following a year in which authority pro21 vided in paragraph (1) is exercised for an executive agency, the head 

22 of the executive agency shall submit to the Committee on Homeland 

23 Security and Governmental Affairs of the Senate and the Committee 

24 on Government Reform of the House of Representatives a report on 

25 the exercise of the authority during the preceding year and the reasons 

26 why the authority was exercised in any instance. 

27 (d) AUTHORITY OF COMPTROLLER GENERAL.— 

28 (1) IN GENERAL.—Except as provided in paragraph (2), each con29 tract awarded after using procedures other than sealed bid procedures 

30 shall provide that the Comptroller General and representatives of the 

31 Comptroller General may examine records of the contractor, or any of 

32 its subcontractors, that directly pertain to, and involve transactions re33 lating to, the contract or subcontract. 

34 (2) EXCEPTION FOR FOREIGN CONTRACTOR OR SUBCONTRACTOR.— 

35 Paragraph (1) does not apply to a contract or subcontract with a for36 eign contractor or foreign subcontractor if the executive agency con37 cerned determines, with the concurrence of the Comptroller General or 

38 the designee of the Comptroller General, that applying paragraph (1) 

39 to the contract or subcontract would not be in the public interest. The 

40 concurrence of the Comptroller General or the designee is not required 

41 when— 


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1 (A) the contractor or subcontractor is— 

2 (i) the government of a foreign country or an agency of 

3 that government; or 

4 (ii) precluded by the laws of the country involved from 

5 making its records available for examination; and 

6 (B) the executive agency determines, after taking into account 

7 the price and availability of the property and services from United 

8 States sources, that the public interest would be best served by not 

9 applying paragraph (1). 

10 (3) ADDITIONAL RECORDS NOT REQUIRED.—Paragraph (1) does not 

11 require a contractor or subcontractor to create or maintain a record 

12 that the contractor or subcontractor does not maintain in the ordinary 

13 course of business or pursuant to another law. 

14 (e) LIMITATION ON AUDITS RELATING TO INDIRECT COSTS.—An execu15 tive agency may not perform an audit of indirect costs under a contract, 

16 subcontract, or modification before or after entering into the contract, sub17 contract, or modification when the contracting officer determines that the 

18 objectives of the audit can reasonably be met by accepting the results of 

19 an audit that was conducted by another department or agency of the Fed20 eral Government within one year preceding the date of the contracting offi21 cer’s determination. 

22 (f) EXPIRATION OF AUTHORITY.—The authority of an executive agency 

23 under subsection (b) and the authority of the Comptroller General under 

24 subsection (d) shall expire 3 years after final payment under the contract 

25 or subcontract. 

26 (g) INAPPLICABILITY TO CERTAIN CONTRACTS.—This section does not 

27 apply to the following contracts: 

28 (1) Contracts for utility services at rates not exceeding those estab29 lished to apply uniformly to the public, plus any applicable reasonable 

30 connection charge. 

31 (2) A contract or subcontract that is not greater than the simplified 

32 acquisition threshold. 

33 (h) ELECTRONIC FORM ALLOWED.—This section does not preclude a con34 tractor from duplicating or storing original records in electronic form. 

35 (i) ORIGINAL RECORDS NOT REQUIRED.—An executive agency shall not 

36 require a contractor or subcontractor to provide original records in an audit 

37 carried out pursuant to this section if the contractor or subcontractor pro38 vides photographic or electronic images of the original records and meets 

39 the following requirements: 

40 (1) PRESERVATION PROCEDURES ESTABLISHED.—The contractor or 

41 subcontractor has established procedures to ensure that the imaging 


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1 process preserves the integrity, reliability, and security of the original 

2 records. 

3 (2) INDEXING SYSTEM MAINTAINED.—The contractor or subcon4 tractor maintains an effective indexing system to permit timely and 

5 convenient access to the imaged records. 

6 (3) ORIGINAL RECORDS RETAINED.—The contractor or subcon7 tractor retains the original records for a minimum of one year after 

8 imaging to permit periodic validation of the imaging systems. 

9 § 4707. Remission of liquidated damages 

10 When a contract made on behalf of the Federal Government by the head 

11 of a Federal agency, or by an authorized officer of the agency, includes a 

12 provision for liquidated damages for delay, the Secretary of the Treasury 

13 on recommendation of the head of the agency may remit any part of the 

14 damages as the Secretary of the Treasury believes is just and equitable. 

15 § 4708. Payment of reimbursable indirect costs in cost-type 

16 research and development contracts with edu17 cational institutions 

18 A cost-type research and development contract (including a grant) with 

19 a university, college, or other educational institution may provide for pay20 ment of reimbursable indirect costs on the basis of predetermined fixed-per21 centage rates applied to the total of the reimbursable direct costs incurred 

22 or to an element of the total of the reimbursable direct costs incurred. 

23 § 4709. Implementation of electronic commerce capability 

24 (a) ROLE OF HEAD OF EXECUTIVE AGENCY.—The head of each execu25 tive agency shall implement the electronic commerce capability required by 

26 section 2301 of this title. In implementing the capability, the head of an 

27 executive agency shall consult with the Administrator. 

28 (b) PROGRAM MANAGER.—The head of each executive agency shall des29 ignate a program manager to implement the electronic commerce capability 

30 for the agency. The program manager reports directly to an official at a 

31 level not lower than the senior procurement executive designated for the 

32 agency under section 1702(c) of this title. 

33 Subtitle II—Other Advertising and Contract 

34 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 

69. Contract Disputes ..................................................................................... 6901 

35 CHAPTER 61—ADVERTISING 

Sec. 

6101. Advertising requirement for Federal Government purchases and sales. 


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6102. Exceptions from advertising requirement. 

6103. Opening of bids. 

1 § 6101. Advertising requirement for Federal Government 

2 purchases and sales 

3 (a) DEFINITIONS.—In this section— 

4 (1) APPROPRIATION.—The term ‘‘appropriation’’ includes amounts 

5 made available by legislation under section 9104 of title 31. 

6 (2) FEDERAL GOVERNMENT.—The term ‘‘Federal Government’’ in7 cludes the government of the District of Columbia. 

8 (b) PURCHASES.— 

9 (1) IN GENERAL.—Unless otherwise provided in the appropriation 

10 concerned or other law, purchases and contracts for supplies or services 

11 for the Federal Government may be made or entered into only after 

12 advertising a sufficient time previously for proposals. 

13 (2) LIMITATIONS ON APPLICABILITY.—Paragraph (1) does not apply 

14 when— 

15 (A) the amount involved in any one case does not exceed 

16 $25,000; 

17 (B) public exigencies require the immediate delivery of articles 

18 or performance of services; 

19 (C) only one source of supply is available and the Federal Gov20 ernment purchasing or contracting officer so certifies; or 

21 (D) services are required to be performed by a contractor in 

22 person and are— 

23 (i) of a technical and professional nature; or 

24 (ii) under Federal Government supervision and paid for on 

25 a time basis. 

26 (c) SALES.—Except when otherwise authorized by law or when the rea27 sonable value involved in any one case does not exceed $500, sales and con28 tracts of sale by the Federal Government are governed by the requirements 

29 of this section for advertising. 

30 (d) APPLICATION TO WHOLLY OWNED GOVERNMENT CORPORATIONS.— 

31 For wholly owned Government corporations, this section applies only to ad32 ministrative transactions. 

33 § 6102. Exceptions from advertising requirement 

34 (a) AMERICAN BATTLE MONUMENTS COMMISSION.—Section 6101 of this 

35 title does not apply to the American Battle Monuments Commission with 

36 respect to leases in foreign countries for office or garage space. 

37 (b) BUREAU OF INTERPARLIAMENTARY UNION FOR PROMOTION OF

38 INTERNATIONAL ARBITRATION.—Section 6101 of this title does not apply 

39 to the Bureau of Interparliamentary Union for Promotion of International 


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1 Arbitration with respect to necessary stenographic reporting services by con2 tract. 

3 (c) DEPARTMENT OF STATE.—Section 6101 of this title does not apply 

4 to the Department of State when the purchase or service relates to the 

5 packing of personal and household effects of Diplomatic, Consular, and For6 eign Service officers and clerks for foreign shipment. 

7 (d) INTERNATIONAL COMMITTEE OF AERIAL LEGAL EXPERTS.—Section 

8 6101 of this title does not apply to the International Committee of Aerial 

9 Legal Experts with respect to necessary stenographic and other services by 

10 contract. 

11 (e) ARCHITECT OF THE CAPITOL.—The purchase of supplies and equip12 ment and the procurement of services for all branches under the Architect 

13 of the Capitol may be made in the open market according to common busi14 ness practice, without compliance with section 6101 of this title, when the 

15 aggregate amount of the purchase or the service does not exceed $25,000 

16 in any instance. 

17 (f) FOREST PRODUCTS FROM INDIAN RESERVATIONS.—Lumber and 

18 other forest products produced by Indian enterprises from forests on Indian 

19 reservations may be sold under regulations the Secretary of the Interior pre20 scribes, without compliance with section 6101 of this title. 

21 (g) HOUSE OF REPRESENTATIVES.—Section 6101 of this title does not 

22 apply to purchases and contracts for supplies or services for any office of 

23 the House of Representatives. 

24 (h) CONGRESSIONAL BUDGET OFFICE.—The Director of the Congres25 sional Budget Office may enter into agreements or contracts without regard 

26 to section 6101 of this title. 

27 § 6103. Opening of bids 

28 Whenever proposals for supplies have been solicited, the parties respond29 ing to the solicitation shall be notified of the time and place of the opening 

30 of the bids, and be permitted to be present either in person or by attorney. 

31 A record of each bid shall be made at the time and place of the opening 

32 of the bids. 

33 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. 


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1 § 6301. Authorization requirement 

2 (a) IN GENERAL.—A contract or purchase on behalf of the Federal Gov3 ernment shall not be made unless the contract or purchase is authorized by 

4 law or is under an appropriation adequate to its fulfillment. 

5 (b) EXCEPTION.— 

6 (1) DEFINITION.—In this subsection, the term ‘‘defined Secretary’’ 

7 means— 

8 (A) the Secretary of Defense; or 

9 (B) the Secretary of the Department in which the Coast Guard 

10 is operating when the Coast Guard is not operating as a service 

11 in the Navy. 

12 (2) IN GENERAL.—Subsection (a) does not apply to a contract or 

13 purchase made by a defined Secretary for clothing, subsistence, forage, 

14 fuel, quarters, transportation, or medical and hospital supplies. 

15 (3) CURRENT YEAR LIMITATION.—A contract or purchase made by 

16 a defined Secretary under this subsection may not exceed the neces17 sities of the current year. 

18 (4) REPORTS.—The defined Secretary shall immediately advise Con19 gress when authority is exercised under this subsection. The defined 

20 Secretary shall report quarterly on the estimated obligations incurred 

21 pursuant to the authority granted in this subsection. 

22 (c) SPECIAL RULE FOR PURCHASE OF LAND.—Land may not be pur23 chased by the Federal Government unless the purchase is authorized by law. 

24 § 6302. Contracts for fuel made by Secretary of the Army 

25 The Secretary of the Army, when the Secretary believes it is in the inter26 est of the United States, may enter into contracts and incur obligations for 

27 fuel in sufficient quantities to meet the requirements for one year without 

28 regard to the current fiscal year. Amounts appropriated for the fiscal year 

29 in which the contract is made or amounts appropriated or which may be 

30 appropriated for the following fiscal year may be used to pay for supplies 

31 delivered under a contract made pursuant to this section. 

32 § 6303. Certain contracts limited to appropriated amounts 

33 A contract to erect, repair, or furnish a public building, or to make any 

34 public improvement, shall not be made on terms requiring the Federal Gov35 ernment to pay more than the amount specifically appropriated for the ac36 tivity covered by the contract. 

37 § 6304. Certain contracts limited to one-year term 

38 Except as otherwise provided, an executive department shall not make a 

39 contract for stationery or other supplies for a term longer than one year 

40 from the time the contract is made. 


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1 § 6305. Prohibition on transfer of contract and certain al2 lowable assignments 

3 (a) GENERAL PROHIBITION ON TRANSFER OF CONTRACTS.—The party 

4 to whom the Federal Government gives a contract or order may not transfer 

5 the contract or order, or any interest in the contract or order, to another 

6 party. A purported transfer in violation of this subsection annuls the con7 tract or order so far as the Federal Government is concerned, except that 

8 all rights of action for breach of contract are reserved to the Federal Gov9 ernment. 

10 (b) ASSIGNMENT.— 

11 (1) IN GENERAL.—Notwithstanding subsection (a) and in accordance 

12 with the requirements of this subsection, amounts due from the Fed13 eral Government under a contract may be assigned to a bank, trust 

14 company, Federal lending agency, or other financing institution. 

15 (2) MINIMUM AMOUNT.—This subsection applies only to a contract 

16 under which the aggregate amounts due from the Federal Government 

17 total at least $1,000. 

18 (3) ACCORD WITH CONTRACT TERMS.—Assignment may not be made 

19 under this subsection if the contract forbids the assignment. 

20 (4) FULL BALANCE DUE.—Unless otherwise expressly permitted by 

21 the contract, an assignment under this subsection must cover the bal22 ance of all amounts due from the Federal Government under the con23 tract. 

24 (5) SINGLE ASSIGNMENT.—Unless otherwise expressly permitted by 

25 the contract, an assignment under this subsection may not be made to 

26 more than one party or be subject to further assignment, except that 

27 assignment may be made to one party as agent or trustee for 2 or 

28 more parties participating in the financing. 

29 (6) WRITTEN NOTICE.—The assignee of an assignment under this 

30 subsection shall file written notice of the assignment and a true copy 

31 of the instrument of assignment with— 

32 (A) the contracting officer or head of the officer’s department 

33 or agency; 

34 (B) the surety on any bond connected with the contract; and 

35 (C) the disbursing officer, if any, designated in the contract to 

36 make payment. 

37 (7) VALIDITY.—Notwithstanding any law to the contrary governing 

38 the validity of assignments, an assignment under this subsection is a 

39 valid assignment for all purposes. 

40 (8) NO REFUND TO COVER ASSIGNOR’S LIABILITY.—The assignee of 

41 an assignment under this subsection is not liable to make any refund 


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1 to the Federal Government because of an assignor’s liability to the 

2 Federal Government, whether that liability arises from the contract or 

3 independently. 

4 (9) AVOIDING REDUCTION OR SETOFF WITH CERTAIN CONTRACTS.— 

5 (A) CONTRACT PROVISION.—A contract of the Department of 

6 Defense, the General Services Administration, the Department of 

7 Energy, or another department or agency of the Federal Govern8 ment designated by the President may, on a determination of need 

9 by the President, provide or be amended without consideration to 

10 provide that payments made to an assignee under the contract are 

11 not subject to reduction or setoff. Each determination of need by 

12 the President under this subparagraph shall be published in the 

13 Federal Register. 

14 (B) CARRYING OUT CONTRACT PROVISION.—When a ‘‘no reduc15 tion or setoff’’ provision as described in subparagraph (A) is in16 cluded in a contract, payments to the assignee are not subject to 

17 reduction or setoff for an assignor’s liability arising— 

18 (i) independently of the contract; 

19 (ii) on account of renegotiation under a renegotiation stat20 ute or under a statutory renegotiation article in the contract; 

21 (iii) on account of fines; 

22 (iv) on account of penalties; or 

23 (v) on account of taxes, social security contributions, or the 

24 withholding or non-withholding of taxes or social security con25 tributions, whether arising from or independently of the con26 tract. 

27 (C) LIMITATION.—Subparagraph (B)(iv) does not apply to 

28 amounts which may be collected or withheld from the assignor in 

29 accordance with or for failure to comply with the terms of the con30 tract. 

31 § 6306. Prohibition on Members of Congress making con32 tracts with Federal Government 

33 (a) IN GENERAL.—A Member of Congress may not enter into or benefit 

34 from a contract or agreement or any part of a contract or agreement with 

35 the Federal Government. 

36 (b) EXEMPTIONS.— 

37 (1) IN GENERAL.—Subsection (a) does not apply to contracts that 

38 the Secretary of Agriculture may enter into with farmers. 

39 (2) CERTAIN ACTS.—Subsection (a) does not apply to a contract en40 tered into under— 

41 (A) the Agricultural Adjustment Act (7 U.S.C. 601 et seq.); 


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1 (B) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); or 

2 (C) the Home Owners’ Loan Act (12 U.S.C. 1461 et seq.). 

3 (3) PUBLIC RECORD.—An exemption under this subsection shall be 

4 made a matter of public record. 

5 § 6307. Contracts with Federal Government-owned estab6 lishments and availability of appropriations 

7 An order or contract placed with a Federal Government-owned establish8 ment for work, material, or the manufacture of material pertaining to an 

9 approved project is deemed to be an obligation in the same manner that 

10 a similar order or contract placed with a commercial manufacturer or pri11 vate contractor is an obligation. Appropriations remain available to pay an 

12 obligation to a Federal Government-owned establishment just as appropria13 tions remain available to pay an obligation to a commercial manufacturer 

14 or private contractor. 

15 § 6308. Contracts for transportation of Federal Government 

16 securities 

17 When practicable, a contract for transporting bullion, cash, or securities 

18 of the Federal Government shall be awarded to the lowest responsible bidder 

19 after notice to all parties with means of transportation. 

20 § 6309. Honorable discharge certificate in lieu of birth cer21 tificate 

22 (a) IN GENERAL.—An employer described in subsection (b) may not deny 

23 employment, on account of failure to produce a birth certificate, to an indi24 vidual who submits, in lieu of the birth certificate, an honorable discharge 

25 certificate (or certificate issued in lieu of an honorable discharge certificate) 

26 from the Army, Air Force, Navy, Marine Corps, or Coast Guard of the 

27 United States, unless the honorable discharge certificate shows on its face 

28 that the individual may have been an alien at the time of its issuance. 

29 (b) EMPLOYERS TO WHICH SECTION APPLIES.—An employer referred to 

30 in subsection (a) is an employer— 

31 (1) engaged in— 

32 (A) the production, maintenance, or storage of arms, armament, 

33 ammunition, implements of war, munitions, machinery, tools, 

34 clothing, food, fuel, or any articles or supplies, or parts or ingredi35 ents of any articles or supplies; or 

36 (B) the construction, reconstruction, repair, or installation of a 

37 building, plant, structure, or facility; and 

38 (2) engaged in the activity described in paragraph (1) under— 

39 (A) a contract with the Federal Government; or 

40 (B) any contract that the President, the Secretary of the Army, 

41 the Secretary of the Air Force, the Secretary of the Navy, or the 


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1 Secretary of the Department in which the Coast Guard is oper2 ating certifies to the employer to be necessary to the national de3 fense. 

4 CHAPTER 65—CONTRACTS FOR MATERIALS, SUPPLIES, 

5 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. 

6 § 6501. Definitions 

7 In this chapter— 

8 (1) AGENCY OF THE UNITED STATES.—The term ‘‘agency of the 

9 United States’’ means an executive department, independent establish10 ment, or other agency or instrumentality of the United States, the Dis11 trict of Columbia, or a corporation in which all stock is beneficially 

12 owned by the Federal Government. 

13 (2) PERSON.—The term ‘‘person’’ includes one or more individuals, 

14 partnerships, associations, corporations, legal representatives, trustees, 

15 trustees in cases under title 11, or receivers. 

16 (3) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of 

17 Labor. 

18 § 6502. Required contract terms 

19 A contract made by an agency of the United States for the manufacture 

20 or furnishing of materials, supplies, articles, or equipment, in an amount 

21 exceeding $10,000, shall include the following representations and stipula22 tions: 

23 (1) MINIMUM WAGES TO BE PAID.—All individuals employed by the 

24 contractor in the manufacture or furnishing of materials, supplies, arti25 cles, or equipment under the contract will be paid, without subsequent 

26 deduction or rebate on any account, not less than the prevailing min27 imum wages, as determined by the Secretary, for individuals employed 

28 in similar work or in the particular or similar industries or groups of 

29 industries currently operating in the locality in which the materials, 

30 supplies, articles, or equipment are to be manufactured or furnished 

31 under the contract, except that this paragraph applies only to pur32 chases or contracts relating to industries that have been the subject 

33 matter of a determination by the Secretary. 


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1 (2) MAXIMUM NUMBER OF HOURS TO BE WORKED IN A WEEK.—No 

2 individual employed by the contractor in the manufacture or furnishing 

3 of materials, supplies, articles, or equipment under the contract shall 

4 be permitted to work in excess of 40 hours in any one week, except 

5 that this paragraph does not apply to an employer who has entered 

6 into an agreement with employees pursuant to paragraph (1) or (2) of 

7 section 7(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

8 207(b)(1) or (2)). 

9 (3) INELIGIBLE EMPLOYEES.—No individual under 16 years of age 

10 and no incarcerated individual will be employed by the contractor in 

11 the manufacture or furnishing of materials, supplies, articles, or equip12 ment under the contract, except that this section, or other law or exec13 utive order containing similar prohibitions against the purchase of 

14 goods by the Federal Government, does not apply to convict labor that 

15 satisfies the conditions of section 1761(c) of title 18. 

16 (4) STANDARDS OF PLACES AND WORKING CONDITIONS WHERE CON17 TRACT PERFORMED.—No part of the contract will be performed, and 

18 no materials, supplies, articles, or equipment will be manufactured or 

19 fabricated under the contract, in plants, factories, buildings, or sur20 roundings, or under working conditions, that are unsanitary, haz21 ardous, or dangerous to the health and safety of employees engaged in 

22 the performance of the contract. Compliance with the safety, sanitary, 

23 and factory inspection laws of the State in which the work or part of 

24 the work is to be performed is prima facie evidence of compliance with 

25 this paragraph. 

26 § 6503. Breach or violation of required contract terms 

27 (a) APPLICABLE BREACH OR VIOLATION.—This section applies in case of 

28 breach or violation of a representation or stipulation included in a contract 

29 under section 6502 of this title. 

30 (b) LIQUIDATED DAMAGES.—In addition to damages for any other breach 

31 of the contract, the party responsible for a breach or violation described in 

32 subsection (a) is liable to the Federal Government for the following liq33 uidated damages: 

34 (1) An amount equal to the sum of $10 per day for each individual 

35 under 16 years of age and each incarcerated individual knowingly em36 ployed in the performance of the contract. 

37 (2) An amount equal to the sum of each underpayment of wages due 

38 an employee engaged in the performance of the contract, including any 

39 underpayments arising from deductions, rebates, or refunds. 

40 (c) CANCELLATION AND ALTERNATIVE COMPLETION.—In addition to the 

41 Federal Government being entitled to damages described in subsection (b), 


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1 the agency of the United States that made the contract may cancel the con2 tract and make open-market purchases or make other contracts for the com3 pletion of the original contract, charging any additional cost to the original 

4 contractor. 

5 (d) RECOVERY OF AMOUNTS DUE.—An amount due the Federal Govern6 ment because of a breach or violation described in subsection (a) may be 

7 withheld from any amounts owed the contractor under any contract under 

8 section 6502 of this title or may be recovered in a suit brought by the At9 torney General. 

10 (e) EMPLOYEE REIMBURSEMENT FOR UNDERPAYMENT OF WAGES.—An 

11 amount withheld or recovered under subsection (d) that is based on an un12 derpayment of wages as described in subsection (b)(2) shall be held in a 

13 special deposit account. On order of the Secretary, the amount shall be paid 

14 directly to the underpaid employee on whose account the amount was with15 held or recovered. However, an employee’s claim for payment under this 

16 subsection may be entertained only if made within one year from the date 

17 of actual notice to the contractor of the withholding or recovery. 

18 § 6504. Three-year prohibition on new contracts in case of 

19 breach or violation 

20 (a) DISTRIBUTION OF LIST.—The Comptroller General shall distribute to 

21 each agency of the United States a list containing the names of persons 

22 found by the Secretary to have breached or violated a representation or stip23 ulation included in a contract under section 6502 of this title. 

24 (b) THREE-YEAR PROHIBITION.—Unless the Secretary recommends oth25 erwise, a contract described in section 6502 of this title may not be awarded 

26 to a person named on the list under subsection (a), or to a firm, corpora27 tion, partnership, or association in which the person has a controlling inter28 est, until 3 years have elapsed from the date of the determination by the 

29 Secretary that a breach or violation occurred. 

30 § 6505. Exclusions 

31 (a) ITEMS AVAILABLE IN THE OPEN MARKET.—This chapter does not 

32 apply to the purchase of materials, supplies, articles, or equipment that may 

33 usually be bought in the open market. 

34 (b) PERISHABLES AND AGRICULTURAL PRODUCTS.—This chapter does 

35 not apply to any of the following: 

36 (1) Perishables, including dairy, livestock and nursery products. 

37 (2) Agricultural or farm products processed for first sale by the 

38 original producers. 

39 (3) Contracts made by the Secretary of Agriculture for the purchase 

40 of agricultural commodities or products of agricultural commodities. 


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1 (c) CARRIAGE OF FREIGHT OR PERSONNEL.—This chapter may not be 

2 construed to apply to— 

3 (1) the carriage of freight or personnel by vessel, airplane, bus, 

4 truck, express, or railway line where published tariff rates are in effect; 

5 or 

6 (2) common carriers subject to the Communications Act of 1934 (47 

7 U.S.C. 151 et seq.). 

8 § 6506. Administrative provisions 

9 (a) IN GENERAL.—The Secretary shall administer this chapter. 

10 (b) REGULATIONS.—The Secretary may make, amend, and rescind regu11 lations as necessary to carry out this chapter. 

12 (c) USE OF GOVERNMENT OFFICERS AND EMPLOYEES.—The Secretary 

13 shall use Federal officers and employees and, with a State’s consent, State 

14 and local officers and employees as the Secretary finds necessary to assist 

15 in the administration of this chapter. 

16 (d) APPOINTMENTS.—The Secretary shall appoint an administrative offi17 cer and attorneys, experts, and other employees from time to time as the 

18 Secretary finds necessary for the administration of this chapter. The ap19 pointments are subject to chapter 51 and subchapter III of chapter 53 of 

20 title 5 and other law applicable to the employment and compensation of offi21 cers and employees of the Federal Government. 

22 (e) INVESTIGATIONS.—The Secretary, or an authorized representative of 

23 the Secretary, may make investigations and findings as provided in this 

24 chapter and may, in any part of the United States, prosecute an inquiry 

25 necessary to carry out this chapter. 

26 § 6507. Hearing authority and procedures 

27 (a) RECORD AND HEARING REQUIREMENTS FOR WAGE DETERMINA28 TIONS.—A wage determination under section 6502(1) of this title shall be 

29 made on the record after opportunity for a hearing. 

30 (b) AUTHORITY TO HOLD HEARINGS.—The Secretary or an impartial 

31 representative designated by the Secretary may hold hearings when there is 

32 a complaint of breach or violation of a representation or stipulation included 

33 in a contract under section 6502 of this title. The Secretary may initiate 

34 hearings on the Secretary’s own motion or on the application of a person 

35 affected by the ruling of an agency of the United States relating to a pro36 posal or contract under this chapter. 

37 (c) ORDERS TO COMPEL TESTIMONY.—The Secretary or an impartial 

38 representative designated by the Secretary may issue orders requiring wit39 nesses to attend hearings held under this section and to produce evidence 

40 and testify under oath. Witnesses shall be paid fees and mileage at the same 

41 rates as witnesses in courts of the United States. 


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1 (d) ENFORCEMENT OF ORDERS.—If a person refuses or fails to obey an 

2 order issued under subsection (c), the Secretary or an impartial representa3 tive designated by the Secretary may bring an action to enforce the order 

4 in a district court of the United States or in the district court of a territory 

5 or possession of the United States. A court has jurisdiction to enforce the 

6 order if the inquiry is being carried out within the court’s judicial district 

7 or if the person is found or resides or transacts business within the court’s 

8 judicial district. The court may issue an order requiring the person to obey 

9 the order issued under subsection (c), and the court may punish any further 

10 refusal or failure as contempt of court. 

11 (e) FINDINGS OF FACT.—After notice and a hearing, the Secretary or an 

12 impartial representative designated by the Secretary shall make findings of 

13 fact. The findings are conclusive for agencies of the United States. If sup14 ported by a preponderance of the evidence, the findings are conclusive in 

15 any court of the United States. 

16 (f) DECISIONS.—The Secretary or an impartial representative designated 

17 by the Secretary may make decisions, based on findings of fact, that are 

18 considered necessary to enforce this chapter. 

19 § 6508. Authority to make exceptions 

20 (a) DUTY OF THE SECRETARY TO MAKE EXCEPTIONS.—When the head 

21 of an agency of the United States makes a written finding that the inclusion 

22 of representations or stipulations under section 6502 of this title in a pro23 posal or contract will seriously impair the conduct of Federal Government 

24 business, the Secretary shall make exceptions, in specific cases or otherwise, 

25 when justice or the public interest will be served. 

26 (b) AUTHORITY OF THE SECRETARY TO MODIFY EXISTING CON27 TRACTS.—When an agency of the United States and a contractor jointly 

28 recommend, the Secretary may modify the terms of an existing contract 

29 with respect to minimum wages and maximum hours of labor as the Sec30 retary finds necessary and proper in the public interest or to prevent injus31 tice and undue hardship. 

32 (c) AUTHORITY OF THE SECRETARY TO ALLOW LIMITATIONS, VARI33 ATIONS, TOLERANCES, AND EXEMPTIONS.—The Secretary may provide rea34 sonable limitations and may prescribe regulations to allow reasonable vari35 ations, tolerances, and exemptions in the application of this chapter to con36 tractors, including with respect to minimum wages and maximum hours of 

37 labor. 

38 (d) RATE OF PAY FOR OVERTIME.—When the Secretary permits an in39 crease in the maximum hours of labor stipulated in a contract, the Sec40 retary shall set a rate of pay for overtime. The overtime rate must be at 

41 least one and one-half times the basic hourly rate. 


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1 (e) AUTHORITY OF THE PRESIDENT TO SUSPEND.—The President may 

2 suspend any of the representations and stipulations contained in section 

3 6502 of this title whenever, in the President’s judgment, suspension is in 

4 the public interest. 

5 § 6509. Other procedures 

6 (a) APPLICABILITY OF CERTAIN ADMINISTRATIVE PROVISIONS.—Not7 withstanding section 553 of title 5, subchapter II of chapter 5 and chapter 

8 7 of title 5 are applicable in the administration of sections 6501 to 6507 

9 and 6511 of this title. 

10 (b) JUDICIAL REVIEW IN GENERAL.—Notwithstanding the inclusion of 

11 representations and stipulations in a contract under section 6502 of this 

12 title, an interested person has the right of judicial review of any legal ques13 tion which might otherwise be raised, including wage determinations and the 

14 interpretation of the terms ‘‘locality’’ and ‘‘open market’’. 

15 (c) JUDICIAL REVIEW OF WAGE DETERMINATIONS.—A person adversely 

16 affected or aggrieved by a wage determination under section 6502(1) of this 

17 title has the right of judicial review of the determination, or of the applica18 bility of the determination, within 90 days after the determination is made, 

19 in the manner provided by chapter 7 of title 5. A person adversely affected 

20 or aggrieved by a wage determination is deemed to include a person in an 

21 industry to which the determination applies that is a supplier of materials, 

22 supplies, articles, or equipment that are purchased or intended to be pur23 chased by the Federal Government from any source. 

24 § 6510. Manufacturers and regular dealers 

25 (a) PRESCRIBING STANDARDS.—The Secretary may prescribe, in regula26 tions, standards for determining whether a contractor is a manufacturer or 

27 regular dealer with respect to materials, supplies, articles, or equipment to 

28 be manufactured or furnished under, or used in the performance of, a con29 tract entered into by an agency of the United States. 

30 (b) JUDICIAL REVIEW.—An interested person has the right of judicial re31 view of any legal question relating to interpretation of the terms ‘‘regular 

32 dealer’’ and ‘‘manufacturer’’ as defined pursuant to subsection (a). 

33 § 6511. Effect on other law 

34 This chapter may not be construed to modify or amend the following pro35 visions: 

36 (1) Chapter 83 of this title. 

37 (2) Sections 3141 to 3144, 3146, and 3147 of title 40. 

38 (3) Chapter 307 of title 18. 

39 CHAPTER 67—SERVICE CONTRACT LABOR STANDARDS 

Sec. 

6701. Definitions. 

6702. Contracts to which this chapter applies. 


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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. 

1 § 6701. Definitions 

2 In this chapter: 

3 (1) COMPENSATION.—The term ‘‘compensation’’ means any of the 

4 payments or fringe benefits described in section 6703 of this title. 

5 (2) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of 

6 Labor. 

7 (3) SERVICE EMPLOYEE.—The term ‘‘service employee’’— 

8 (A) means an individual engaged in the performance of a con9 tract made by the Federal Government and not exempted under 

10 section 6702(b) of this title, whether negotiated or advertised, the 

11 principal purpose of which is to furnish services in the United 

12 States; 

13 (B) includes an individual without regard to any contractual re14 lationship alleged to exist between the individual and a contractor 

15 or subcontractor; but 

16 (C) does not include an individual employed in a bona fide exec17 utive, administrative, or professional capacity, as those terms are 

18 defined in part 541 of title 29, Code of Federal Regulations. 

19 (4) UNITED STATES.—The term ‘‘United States’’— 

20 (A) includes any State of the United States, the District of Co21 lumbia, Puerto Rico, the Virgin Islands, the outer Continental 

22 Shelf as defined in the Outer Continental Shelf Lands Act (43 

23 U.S.C. § 1331 et seq.), American Samoa, Guam, Wake Island, and 

24 Johnston Island; but 

25 (B) does not include any other territory under the jurisdiction 

26 of the United States or any United States base or possession with27 in a foreign country. 

28 § 6702. Contracts to which this chapter applies 

29 (a) IN GENERAL.—Except as provided in subsection (b), this chapter ap30 plies to any contract or bid specification for a contract, whether negotiated 

31 or advertised, that— 

32 (1) is made by the Federal Government or the District of Columbia; 

33 (2) involves an amount exceeding $2,500; and 

34 (3) has as its principal purpose the furnishing of services in the 

35 United States through the use of service employees. 

36 (b) EXEMPTIONS.—This chapter does not apply to— 


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1 (1) a contract of the Federal Government or the District of Colum2 bia for the construction, alteration, or repair, including painting and 

3 decorating, of public buildings or public works; 

4 (2) any work required to be done in accordance with chapter 65 of 

5 this title; 

6 (3) a contract for the carriage of freight or personnel by vessel, air7 plane, bus, truck, express, railway line or oil or gas pipeline where pub8 lished tariff rates are in effect; 

9 (4) a contract for the furnishing of services by radio, telephone, tele10 graph, or cable companies, subject to the Communications Act of 1934 

11 (47 U.S.C. 151 et seq.); 

12 (5) a contract for public utility services, including electric light and 

13 power, water, steam, and gas; 

14 (6) an employment contract providing for direct services to a Federal 

15 agency by an individual; and 

16 (7) a contract with the United States Postal Service, the principal 

17 purpose of which is the operation of postal contract stations. 

18 § 6703. Required contract terms 

19 A contract, and bid specification for a contract, to which this chapter ap20 plies under section 6702 of this title shall contain the following terms: 

21 (1) MINIMUM WAGE.—The contract and bid specification shall con22 tain a provision specifying the minimum wage to be paid to each class 

23 of service employee engaged in the performance of the contract or any 

24 subcontract, as determined by the Secretary or the Secretary’s author25 ized representative, in accordance with prevailing rates in the locality, 

26 or, where a collective-bargaining agreement covers the service employ27 ees, in accordance with the rates provided for in the agreement, includ28 ing prospective wage increases provided for in the agreement as a re29 sult of arm’s length negotiations. In any case the minimum wage may 

30 not be less than the minimum wage specified in section 6704 of this 

31 title. 

32 (2) FRINGE BENEFITS.—The contract and bid specification shall 

33 contain a provision specifying the fringe benefits to be provided to each 

34 class of service employee engaged in the performance of the contract 

35 or any subcontract, as determined by the Secretary or the Secretary’s 

36 authorized representative to be prevailing in the locality, or, where a 

37 collective-bargaining agreement covers the service employees, to be pro38 vided for under the agreement, including prospective fringe benefit in39 creases provided for in the agreement as a result of arm’s-length nego40 tiations. The fringe benefits shall include medical or hospital care, pen41 sions on retirement or death, compensation for injuries or illness resultVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00149 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 ing from occupational activity, or insurance to provide any of the fore2 going, unemployment benefits, life insurance, disability and sickness in3 surance, accident insurance, vacation and holiday pay, costs of appren4 ticeship or other similar programs and other bona fide fringe benefits 

5 not otherwise required by Federal, State, or local law to be provided 

6 by the contractor or subcontractor. The obligation under this para7 graph may be discharged by furnishing any equivalent combinations of 

8 fringe benefits or by making equivalent or differential payments in cash 

9 under regulations established by the Secretary. 

10 (3) WORKING CONDITIONS.—The contract and bid specification shall 

11 contain a provision specifying that no part of the services covered by 

12 this chapter may be performed in buildings or surroundings or under 

13 working conditions, provided by or under the control or supervision of 

14 the contractor or any subcontractor, which are unsanitary or hazardous 

15 or dangerous to the health or safety of service employees engaged to 

16 provide the services. 

17 (4) NOTICE.—The contract and bid specification shall contain a pro18 vision specifying that on the date a service employee begins work on 

19 a contract to which this chapter applies, the contractor or subcon20 tractor will deliver to the employee a notice of the compensation re21 quired under paragraphs (1) and (2), on a form prepared by the Fed22 eral agency, or will post a notice of the required compensation in a 

23 prominent place at the worksite. 

24 (5) GENERAL SCHEDULE PAY RATES AND PREVAILING RATE SYS25 TEMS.—The contract and bid specification shall contain a statement of 

26 the rates that would be paid by the Federal agency to each class of 

27 service employee if section 5332 or 5341 of title 5 were applicable to 

28 them. The Secretary shall give due consideration to these rates in mak29 ing the wage and fringe benefit determinations specified in this section. 

30 § 6704. Limitation on minimum wage 

31 (a) IN GENERAL.—A contractor that makes a contract with the Federal 

32 Government, the principal purpose of which is to furnish services through 

33 the use of service employees, and any subcontractor, may not pay less than 

34 the minimum wage specified under section 6(a)(1) of the Fair Labor Stand35 ards Act of 1938 (29 U.S.C. 206(a)(1)) to an employee engaged in per36 forming work on the contract. 

37 (b) VIOLATIONS.—Sections 6705 to 6707(d) of this title are applicable to 

38 a violation of this section. 

39 § 6705. Violations 

40 (a) LIABILITY OF RESPONSIBLE PARTY.—A party responsible for a viola41 tion of a contract provision required under section 6703(1) or (2) of this 


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1 title or a violation of section 6704 of this title is liable for an amount equal 

2 to the sum of any deduction, rebate, refund, or underpayment of compensa3 tion due any employee engaged in the performance of the contract. 

4 (b) RECOVERY OF AMOUNTS UNDERPAID TO EMPLOYEES.— 

5 (1) WITHHOLDING ACCRUED PAYMENTS DUE ON CONTRACTS.—The 

6 total amount determined under subsection (a) to be due any employee 

7 engaged in the performance of a contract may be withheld from ac8 crued payments due on the contract or on any other contract between 

9 the same contractor and the Federal Government. The amount with10 held shall be held in a deposit fund. On order of the Secretary, the 

11 compensation found by the Secretary or the head of a Federal agency 

12 to be due an underpaid employee pursuant to this chapter shall be paid 

13 from the deposit fund directly to the underpaid employee. 

14 (2) BRINGING ACTIONS AGAINST CONTRACTORS.—If the accrued pay15 ments withheld under the terms of the contract are insufficient to reim16 burse a service employee with respect to whom there has been a failure 

17 to pay the compensation required pursuant to this chapter, the Federal 

18 Government may bring action against the contractor, subcontractor, or 

19 any sureties in any court of competent jurisdiction to recover the re20 maining amount of underpayment. Any amount recovered shall be held 

21 in the deposit fund and shall be paid, on order of the Secretary, di22 rectly to the underpaid employee. Any amount not paid to an employee 

23 because of inability to do so within 3 years shall be covered into the 

24 Treasury as miscellaneous receipts. 

25 (c) CANCELLATION AND ALTERNATIVE COMPLETION.—In addition to 

26 other actions in accordance with this section, when a violation of any con27 tract stipulation is found, the Federal agency that made the contract may 

28 cancel the contract on written notice to the original contractor. The Federal 

29 Government may then make other contracts or arrangements for the com30 pletion of the original contract, charging any additional cost to the original 

31 contractor. 

32 (d) ENFORCEMENT OF SECTION.—In accordance with regulations pre33 scribed pursuant to section 6707(a)–(d) of this title, the Secretary or the 

34 head of a Federal agency may carry out this section. 

35 § 6706. Three-year prohibition on new contracts in case of 

36 violation 

37 (a) DISTRIBUTION OF LIST.—The Comptroller General shall distribute to 

38 each agency of the Federal Government a list containing the names of per39 sons or firms that a Federal agency or the Secretary has found to have vio40 lated this chapter. 


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1 (b) THREE-YEAR PROHIBITION.—Unless the Secretary recommends oth2 erwise because of unusual circumstances, a Federal Government contract 

3 may not be awarded to a person or firm named on the list under subsection 

4 (a), or to an entity in which the person or firm has a substantial interest, 

5 until 3 years have elapsed from the date of publication of the list. If the 

6 Secretary does not recommend otherwise because of unusual circumstances, 

7 the Secretary shall, not later than 90 days after a hearing examiner has 

8 made a finding of a violation of this chapter, forward to the Comptroller 

9 General the name of the person or firm found to have violated this chapter. 

10 § 6707. Enforcement and administration of chapter 

11 (a) ENFORCEMENT OF CHAPTER.—Sections 6506 and 6507 of this title 

12 govern the Secretary’s authority to enforce this chapter, including the Sec13 retary’s authority to prescribe regulations, issue orders, hold hearings, make 

14 decisions based on findings of fact, and take other appropriate action under 

15 this chapter. 

16 (b) LIMITATIONS AND REGULATIONS FOR VARIATIONS, TOLERANCES, 

17 AND EXEMPTIONS.—The Secretary may provide reasonable limitations and 

18 may prescribe regulations allowing reasonable variation, tolerances, and ex19 emptions with respect to this chapter (other than subsection (f)), but only 

20 in special circumstances where the Secretary determines that the limitation, 

21 variation, tolerance, or exemption is necessary and proper in the public in22 terest or to avoid the serious impairment of Federal Government business, 

23 and is in accord with the remedial purpose of this chapter to protect pre24 vailing labor standards. 

25 (c) PRESERVATION OF WAGES AND BENEFITS DUE UNDER PREDE26 CESSOR CONTRACTS.— 

27 (1) IN GENERAL.—Under a contract which succeeds a contract sub28 ject to this chapter, and under which substantially the same services 

29 are furnished, a contractor or subcontractor may not pay a service em30 ployee less than the wages and fringe benefits the service employee 

31 would have received under the predecessor contract, including accrued 

32 wages and fringe benefits and any prospective increases in wages and 

33 fringe benefits provided for in a collective-bargaining agreement as a 

34 result of arm’s-length negotiations. 

35 (2) EXCEPTION.—This subsection does not apply if the Secretary 

36 finds after a hearing in accordance with regulations adopted by the 

37 Secretary that wages and fringe benefits under the predecessor con38 tract are substantially at variance with wages and fringe benefits pre39 vailing in the same locality for services of a similar character. 

40 (d) DURATION OF CONTRACTS.—Subject to limitations in annual appro41 priation acts but notwithstanding any other law, a contract to which this 


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1 chapter applies may, if authorized by the Secretary, be for any term of 

2 years not exceeding 5, if the contract provides for periodic adjustment of 

3 wages and fringe benefits pursuant to future determinations, issued in the 

4 manner prescribed in section 6703 of this title at least once every 2 years 

5 during the term of the contract, covering each class of service employee. 

6 (e) EXCLUSION OF FRINGE BENEFIT PAYMENTS IN DETERMINING OVER7 TIME PAY.—In determining any overtime pay to which a service employee 

8 is entitled under Federal law, the regular or basic hourly rate of pay of the 

9 service employee does not include any fringe benefit payments computed 

10 under this chapter which are excluded from the definition of ‘‘regular rate’’ 

11 under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

12 207(e)). 

13 (f) TIMELINESS OF WAGE AND FRINGE BENEFIT DETERMINATIONS.—It 

14 is the intent of Congress that determinations of minimum wages and fringe 

15 benefits under section 6703(1) and (2) of this title should be made as soon 

16 as administratively feasible for all contracts subject to this chapter. In any 

17 event, the Secretary shall at least make the determinations for contracts 

18 under which more than 5 service employees are to be employed. 

19 CHAPTER 69—CONTRACT DISPUTES 

Sec. 

6901. Definitions. 

6902. Applicability of chapter. 

6903. Decision by contracting officer. 

6904. Contractor’s right of appeal from decision by contracting officer. 

6905. Agency boards. 

6906. Agency board procedures for accelerated and small claims. 

6907. Judicial review of agency board decisions. 

6908. Payment of claims. 

6909. Interest. 

20 § 6901. Definitions 

21 In this chapter: 

22 (1) ADMINISTRATOR.—The term ‘‘Administrator’’ means the Admin23 istrator for Federal Procurement Policy appointed pursuant to section 

24 1102 of this title. 

25 (2) AGENCY BOARD.—The term ‘‘agency board’’ means an agency 

26 board of contract appeals established under section 6905 of this title. 

27 (3) AGENCY HEAD.—The term ‘‘agency head’’ means the head and 

28 any assistant head of an executive agency. The term may include the 

29 chief official of a principal division of an executive agency if the head 

30 of the executive agency so designates that chief official. 

31 (4) CONTRACTING OFFICER.—The term ‘‘contracting officer’’— 

32 (A) means an individual who, by appointment in accordance 

33 with applicable regulations, has the authority to make and admin34 ister contracts and to make determinations and findings with re35 spect to contracts; and 


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1 (B) includes an authorized representative of the contracting of2 ficer, acting within the limits of the representative’s authority. 

3 (5) CONTRACTOR.—The term ‘‘contractor’’ means a party to a Fed4 eral Government contract other than the Federal Government. 

5 (6) EXECUTIVE AGENCY.—The term ‘‘executive agency’’ means— 

6 (A) an executive department as defined in section 101 of title 

7 5; 

8 (B) a military department as defined in section 102 of title 5; 

9 (C) an independent establishment as defined in section 104 of 

10 title 5, except that the term does not include the Government Ac11 countability Office; 

12 (D) a wholly owned Government corporation as defined in sec13 tion 9101(3) of title 31; 

14 (E) the United States Postal Service; and 

15 (F) the Postal Rate Commission. 

16 (7) MISREPRESENTATION OF FACT.—The term ‘‘misrepresentation 

17 of fact’’ means a false statement of substantive fact, or conduct that 

18 leads to a belief of a substantive fact material to proper understanding 

19 of the matter in hand, made with intent to deceive or mislead. 

20 § 6902. Applicability of chapter 

21 (a) EXECUTIVE AGENCY CONTRACTS.—Unless otherwise specifically pro22 vided in this chapter, this chapter applies to any express or implied contract 

23 (including those of the nonappropriated fund activities described in sections 

24 1346 and 1491 of title 28) made by an executive agency for— 

25 (1) the procurement of property, other than real property in being; 

26 (2) the procurement of services; 

27 (3) the procurement of construction, alteration, repair, or mainte28 nance of real property; or 

29 (4) the disposal of personal property. 

30 (b) TENNESSEE VALLEY AUTHORITY CONTRACTS.— 

31 (1) IN GENERAL.—With respect to contracts of the Tennessee Valley 

32 Authority, this chapter applies only to contracts containing a clause 

33 that requires contract disputes to be resolved through an agency ad34 ministrative process. 

35 (2) EXCLUSION.—Notwithstanding any other provision of this chap36 ter, this chapter does not apply to a contract of the Tennessee Valley 

37 Authority for the sale of fertilizer or electric power or related to the 

38 conduct or operation of the electric power system. 

39 (c) FOREIGN GOVERNMENT OR INTERNATIONAL ORGANIZATION CON40 TRACTS.—If an agency head determines that applying this chapter would 

41 not be in the public interest, this chapter does not apply to a contract with 


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1 a foreign government, an agency of a foreign government, an international 

2 organization, or a subsidiary body of an international organization. 

3 (d) MARITIME CONTRACTS.—Appeals under section 6907(a) of this title 

4 and actions brought under sections 6904(b) and 6907(b)–(f) of this title, 

5 arising out of maritime contracts, are governed by the Act of March 9, 1920 

6 (known as the Suits in Admiralty Act) (46 App. U.S.C. 741 et seq.), or the 

7 Act of March 3, 1925 (known as the Public Vessels Act) (46 App. U.S.C. 

8 781 et seq.), as applicable, to the extent that those Acts are not inconsistent 

9 with this chapter. 

10 § 6903. Decision by contracting officer 

11 (a) CLAIMS GENERALLY.— 

12 (1) SUBMISSION OF CONTRACTOR’S CLAIMS TO CONTRACTING OFFI13 CER.—Each claim by a contractor against the Federal Government re14 lating to a contract shall be submitted to the contracting officer for a 

15 decision. 

16 (2) CONTRACTOR’S CLAIMS IN WRITING.—Each claim by a contractor 

17 against the Federal Government relating to a contract shall be in writ18 ing. 

19 (3) CONTRACTING OFFICER TO DECIDE FEDERAL GOVERNMENT’S

20 CLAIMS.—Each claim by the Federal Government against a contractor 

21 relating to a contract shall be the subject of a decision by the con22 tracting officer. 

23 (4) TIME FOR SUBMITTING CLAIMS.— 

24 (A) IN GENERAL.—Each claim by a contractor against the Fed25 eral Government relating to a contract and each claim by the Fed26 eral Government against a contractor relating to a contract shall 

27 be submitted within 6 years after the accrual of the claim. 

28 (B) EXCEPTION.—This paragraph does not apply to a claim by 

29 the Federal Government against a contractor that is based on a 

30 claim by the contractor involving fraud. 

31 (5) APPLICABILITY.—The authority of this subsection and sub32 sections (c)(1), (d), and (e) does not extend to a claim or dispute for 

33 penalties or forfeitures prescribed by statute or regulation that another 

34 Federal agency is specifically authorized to administer, settle, or deter35 mine. 

36 (b) CERTIFICATION OF CLAIMS.— 

37 (1) REQUIREMENT GENERALLY.—For claims of more than $100,000 

38 made by a contractor, the contractor shall certify that— 

39 (A) the claim is made in good faith; 

40 (B) the supporting data are accurate and complete to the best 

41 of the contractor’s knowledge and belief; 


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1 (C) the amount requested accurately reflects the contract ad2 justment for which the contractor believes the Federal Government 

3 is liable; and 

4 (D) the certifier is authorized to certify the claim on behalf of 

5 the contractor. 

6 (2) WHO MAY EXECUTE CERTIFICATION.—The certification required 

7 by paragraph (1) may be executed by an individual authorized to bind 

8 the contractor with respect to the claim. 

9 (3) FAILURE TO CERTIFY OR DEFECTIVE CERTIFICATION.—A con10 tracting officer is not obligated to render a final decision on a claim 

11 of more than $100,000 that is not certified in accordance with para12 graph (1) if, within 60 days after receipt of the claim, the contracting 

13 officer notifies the contractor in writing of the reasons why any at14 tempted certification was found to be defective. A defect in the certifi15 cation of a claim does not deprive a court or an agency board of juris16 diction over the claim. Prior to the entry of a final judgment by a court 

17 or a decision by an agency board, the court or agency board shall re18 quire a defective certification to be corrected. 

19 (c) FRAUDULENT CLAIMS.— 

20 (1) NO AUTHORITY TO SETTLE.—This section does not authorize an 

21 agency head to settle, compromise, pay, or otherwise adjust any claim 

22 involving fraud. 

23 (2) LIABILITY OF CONTRACTOR.—If a contractor is unable to sup24 port any part of the contractor’s claim and it is determined that the 

25 inability is attributable to a misrepresentation of fact or fraud by the 

26 contractor, then the contractor is liable to the Federal Government for 

27 an amount equal to the unsupported part of the claim plus all of the 

28 Federal Government’s costs attributable to reviewing the unsupported 

29 part of the claim. Liability under this paragraph shall be determined 

30 within 6 years of the commission of the misrepresentation of fact or 

31 fraud. 

32 (d) ISSUANCE OF DECISION.—The contracting officer shall issue a deci33 sion in writing and shall mail or otherwise furnish a copy of the decision 

34 to the contractor. 

35 (e) CONTENTS OF DECISION.—The contracting officer’s decision shall 

36 state the reasons for the decision reached and shall inform the contractor 

37 of the contractor’s rights as provided in this chapter. Specific findings of 

38 fact are not required. If made, specific findings of fact are not binding in 

39 any subsequent proceeding. 

40 (f) TIME FOR ISSUANCE OF DECISION.— 


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1 (1) CLAIM OF $100,000 OR LESS.—A contracting officer shall issue a 

2 decision on any submitted claim of $100,000 or less within 60 days 

3 from the contracting officer’s receipt of a written request from the con4 tractor that a decision be rendered within that period. 

5 (2) CLAIM OF MORE THAN $100,000.—A contracting officer shall, 

6 within 60 days of receipt of a submitted certified claim over 

7 $100,000— 

8 (A) issue a decision; or 

9 (B) notify the contractor of the time within which a decision will 

10 be issued. 

11 (3) GENERAL REQUIREMENT OF REASONABLENESS.—The decision of 

12 a contracting officer on submitted claims shall be issued within a rea13 sonable time, in accordance with regulations prescribed by the agency, 

14 taking into account such factors as the size and complexity of the claim 

15 and the adequacy of information in support of the claim provided by 

16 the contractor. 

17 (4) REQUESTING TRIBUNAL TO DIRECT ISSUANCE WITHIN SPECIFIED

18 TIME PERIOD.—A contractor may request the tribunal concerned to di19 rect a contracting officer to issue a decision in a specified period of 

20 time, as determined by the tribunal concerned, in the event of undue 

21 delay on the part of the contracting officer. 

22 (5) FAILURE TO ISSUE DECISION WITHIN REQUIRED TIME PERIOD.— 

23 Failure by a contracting officer to issue a decision on a claim within 

24 the required time period is deemed to be a decision by the contracting 

25 officer denying the claim and authorizes an appeal or action on the 

26 claim as otherwise provided in this chapter. However, the tribunal con27 cerned may, at its option, stay the proceedings of the appeal or action 

28 to obtain a decision by the contracting officer. 

29 (g) FINALITY OF DECISION UNLESS APPEALED.—The contracting offi30 cer’s decision on a claim is final and conclusive and is not subject to review 

31 by any forum, tribunal, or Federal Government agency, unless an appeal or 

32 action is timely commenced as authorized by this chapter. This chapter does 

33 not prohibit an executive agency from including a clause in a Federal Gov34 ernment contract requiring that, pending final decision of an appeal, action, 

35 or final settlement, a contractor shall proceed diligently with performance 

36 of the contract in accordance with the contracting officer’s decision. 

37 (h) ALTERNATIVE MEANS OF DISPUTE RESOLUTION.— 

38 (1) IN GENERAL.—Notwithstanding any other provision of this chap39 ter, a contractor and a contracting officer may use any alternative 

40 means of dispute resolution under subchapter IV of chapter 5 of title 

41 5, or other mutually agreeable procedures, for resolving claims. All proVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00157 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 visions of subchapter IV of chapter 5 of title 5 apply to alternative 

2 means of dispute resolution under this subsection. 

3 (2) CERTIFICATION OF CLAIM.—The contractor shall certify the 

4 claim when required to do so under subsection (b)(1) or other law. 

5 (3) REJECTING REQUEST FOR ALTERNATIVE DISPUTE RESOLU6 TION.— 

7 (A) CONTRACTING OFFICER.—A contracting officer who rejects 

8 a contractor’s request for alternative dispute resolution pro9 ceedings shall provide the contractor with a written explanation, 

10 citing one or more of the conditions in section 572(b) of title 5 

11 or other specific reasons that alternative dispute resolution proce12 dures are inappropriate. 

13 (B) CONTRACTOR.—A contractor that rejects an agency’s re14 quest for alternative dispute resolution proceedings shall inform 

15 the agency in writing of the contractor’s specific reasons for re16 jecting the request. 

17 § 6904. Contractor’s right of appeal from decision by con18 tracting officer 

19 (a) APPEAL TO AGENCY BOARD.—A contractor, within 90 days from the 

20 date of receipt of a contracting officer’s decision under section 6903 of this 

21 title, may appeal the decision to an agency board as provided in section 

22 6905 of this title. 

23 (b) BRINGING AN ACTION DE NOVO IN FEDERAL COURT.— 

24 (1) IN GENERAL.—Except as provided in paragraph (2), and in lieu 

25 of appealing the decision of a contracting officer under section 6903 

26 of this title to an agency board, a contractor may bring an action di27 rectly on the claim in the United States Court of Federal Claims, not28 withstanding any contract provision, regulation, or rule of law to the 

29 contrary. 

30 (2) TENNESSEE VALLEY AUTHORITY.—In the case of an action 

31 against the Tennessee Valley Authority, the contractor may only bring 

32 an action directly on the claim in a district court of the United States 

33 pursuant to section 1337 of title 28, notwithstanding any contract pro34 vision, regulation, or rule of law to the contrary. 

35 (3) TIME FOR FILING.—A contractor shall file any action under 

36 paragraph (1) or (2) within 12 months from the date of receipt of a 

37 contracting officer’s decision under section 6903 of this title. 

38 (4) DE NOVO.—An action under paragraph (1) or (2) shall proceed 

39 de novo in accordance with the rules of the appropriate court. 

40 § 6905. Agency boards 

41 (a) ESTABLISHMENT.— 


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1 (1) IN GENERAL.—Except as provided in paragraph (2), an agency 

2 board of contract appeals may be established within an executive agen3 cy when the agency head, after consultation with the Administrator, de4 termines from a workload study that the volume of contract claims jus5 tifies the establishment of a full-time agency board of at least 3 mem6 bers who shall have no other inconsistent duties. Workload studies will 

7 be updated at least once every 3 years and submitted to the Adminis8 trator. 

9 (2) TENNESSEE VALLEY AUTHORITY.—The Board of Directors of 

10 the Tennessee Valley Authority may establish an agency board of con11 tract appeals for the Authority of an indeterminate number of mem12 bers. 

13 (3) GUIDELINES.—The Administrator, pursuant to the authority 

14 conferred under part B of subtitle I of this title and as necessary or 

15 desirable to carry out this chapter, shall issue guidelines with respect 

16 to the establishment, functions, and procedures of agency boards, ex17 cept for the agency board established by the Tennessee Valley Author18 ity. 

19 (b) APPOINTMENT OF MEMBERS AND COMPENSATION.— 

20 (1) IN GENERAL.—Except as provided in paragraph (2), members of 

21 an agency board shall be selected and appointed in the same manner 

22 as administrative law judges appointed pursuant to section 3105 of 

23 title 5, with an additional requirement that members of an agency 

24 board must have had at least 5 years of experience in public contract 

25 law. A chairman and vice chairman of each agency board shall be des26 ignated by the agency head from among the appointed members. Com27 pensation for the chairman, vice chairman, and other members shall be 

28 determined under section 5372a of title 5. 

29 (2) TENNESSEE VALLEY AUTHORITY.—The Board of Directors of 

30 the Tennessee Valley Authority shall establish criteria for the appoint31 ment of members to the agency board established under subsection 

32 (a)(2), and shall designate a chairman of the agency board. The chair33 man and other members of the agency board shall receive compensa34 tion, at the daily equivalent of the rates determined under section 

35 5372a of title 5, for each day they are engaged in the actual perform36 ance of their duties as members of the agency board. 

37 (c) INTER-AGENCY ARRANGEMENTS.—If the volume of contract claims is 

38 not sufficient to justify an agency board under subsection (a), or if an agen39 cy head otherwise considers it appropriate, the agency head shall arrange 

40 for appeals from decisions by contracting officers of the agency to be de41 cided by the agency board of another executive agency. If an agency head 


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1 is unable to make such an arrangement, the agency head shall submit any 

2 appeals to the Administrator for placement with an agency board. This sub3 section does not apply to the Tennessee Valley Authority. 

4 (d) JURISDICTION.— 

5 (1) IN GENERAL.—Each agency board has jurisdiction to decide any 

6 appeal from the decision of a contracting officer, relative to a contract 

7 made by— 

8 (A) the agency board’s own agency; or 

9 (B) another agency, if the other agency or the Administrator 

10 designates the agency board to decide the appeal pursuant to sub11 section (c). 

12 (2) RELIEF.—In exercising this jurisdiction, an agency board may 

13 grant any relief that would be available to a litigant asserting a con14 tract claim in the United States Court of Federal Claims. 

15 (e) SUBPOENA, DISCOVERY, AND DEPOSITION.—A member of an agency 

16 board may administer oaths to witnesses, authorize depositions and dis17 covery proceedings, and require by subpoena the attendance of witnesses, 

18 and production of books and papers, for the taking of testimony or evidence 

19 by deposition or in the hearing of an appeal by the agency board. In case 

20 of contumacy or refusal to obey a subpoena by a person who resides, is 

21 found, or transacts business within the jurisdiction of a United States dis22 trict court, the court, upon application of the agency board through the At23 torney General, or upon application by the agency board of the Tennessee 

24 Valley Authority, shall have jurisdiction to issue the person an order requir25 ing the person to appear before the agency board or a member of the agency 

26 board, to produce evidence or to give testimony, or both. Any failure of the 

27 person to obey the order of the court may be punished by the court as con28 tempt of court. 

29 (f) DECISIONS.—An agency board shall— 

30 (1) to the fullest extent practicable provide informal, expeditious, and 

31 inexpensive resolution of disputes; 

32 (2) issue a decision in writing or take other appropriate action on 

33 each appeal submitted; and 

34 (3) mail or otherwise furnish a copy of the decision to the contractor 

35 and the contracting officer. 

36 § 6906. Agency board procedures for accelerated and small 

37 claims 

38 (a) ACCELERATED PROCEDURE WHERE $100,000 OR LESS IN DIS39 PUTE.—The rules of each agency board shall include a procedure for the 

40 accelerated disposition of any appeal from a decision of a contracting officer 

41 where the amount in dispute is $100,000 or less. The accelerated procedure 


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1 is applicable at the sole election of the contractor. An appeal under the ac2 celerated procedure shall be resolved, whenever possible, within 180 days 

3 from the date the contractor elects to use the procedure. 

4 (b) SMALL CLAIMS PROCEDURE WHERE $50,000 OR LESS IN DIS5 PUTE.— 

6 (1) IN GENERAL.—The rules of each agency board shall include a 

7 procedure for the expedited disposition of any appeal from a decision 

8 of a contracting officer where the amount in dispute is $50,000 or less. 

9 The small claims procedure is applicable at the sole election of the con10 tractor. 

11 (2) SIMPLIFIED RULES OF PROCEDURE.—The small claims proce12 dure shall provide for simplified rules of procedure to facilitate the de13 cision of any appeal. An appeal under the small claims procedure may 

14 be decided by a single member of the agency board with such concur15 rences as may be provided by rule or regulation. 

16 (3) TIME OF DECISION.—An appeal under the small claims proce17 dure shall be resolved, whenever possible, within 120 days from the 

18 date the contractor elects to use the procedure. 

19 (4) FINALITY OF DECISION.—A decision against the Federal Govern20 ment or against the contractor reached under the small claims proce21 dure is final and conclusive and may not be set aside except in cases 

22 of fraud. 

23 (5) NO PRECEDENT.—Administrative determinations and final deci24 sions under this subsection have no value as precedent for future cases 

25 under this chapter. 

26 (6) REVIEW OF REQUISITE AMOUNT IN CONTROVERSY.—The Admin27 istrator, from time to time, may review the dollar amount specified in 

28 paragraph (1) and adjust the amount in accordance with economic in29 dexes selected by the Administrator. 

30 § 6907. Judicial review of agency board decisions 

31 (a) REVIEW.— 

32 (1) IN GENERAL.—The decision of an agency board is final, except 

33 that— 

34 (A) a contractor may appeal the decision to the United States 

35 Court of Appeals for the Federal Circuit within 120 days from the 

36 date the contractor receives a copy of the decision; or 

37 (B) if an agency head determines that an appeal should be 

38 taken, the agency head, with the prior approval of the Attorney 

39 General, may transmit the decision to the United States Court of 

40 Appeals for the Federal Circuit for judicial review under section 


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1 1295 of title 28, within 120 days from the date the agency re2 ceives a copy of the decision. 

3 (2) TENNESSEE VALLEY AUTHORITY.—Notwithstanding paragraph 

4 (1), a decision of the agency board of the Tennessee Valley Authority 

5 is final, except that— 

6 (A) a contractor may appeal the decision to a United States dis7 trict court pursuant to section 1337 of title 28, within 120 days 

8 from the date the contractor receives a copy of the decision; or 

9 (B) the Tennessee Valley Authority may appeal the decision to 

10 a United States district court pursuant to section 1337 of title 28, 

11 within 120 days from the date of the decision. 

12 (3) REVIEW OF ARBITRATION.—An award by an arbitrator under 

13 this chapter shall be reviewed pursuant to sections 9 to 13 of title 9, 

14 except that the court may set aside or limit any award that is found 

15 to violate limitations imposed by Federal statute. 

16 (b) FINALITY OF AGENCY BOARD DECISIONS ON QUESTIONS OF LAW

17 AND FACT.—Notwithstanding any contract provision, regulation, or rule of 

18 law to the contrary, in an appeal by a contractor or the Federal Government 

19 from the decision of an agency board pursuant to subsection (a)— 

20 (1) the decision of the agency board on a question of law is not final 

21 or conclusive; but 

22 (2) the decision of the agency board on a question of fact is final 

23 and conclusive and may not be set aside unless the decision is— 

24 (A) fraudulent, arbitrary, or capricious; 

25 (B) so grossly erroneous as to necessarily imply bad faith; or 

26 (C) not supported by substantial evidence. 

27 (c) REMAND.—In an appeal by a contractor or the Federal Government 

28 from the decision of an agency board pursuant to subsection (a), the court 

29 may render an opinion and judgment and remand the case for further ac30 tion by the agency board or by the executive agency as appropriate, with 

31 direction the court considers just and proper. 

32 (d) CONSOLIDATION.—If 2 or more actions arising from one contract are 

33 filed in the United States Court of Federal Claims and one or more agency 

34 boards, for the convenience of parties or witnesses or in the interest of jus35 tice, the United States Court of Federal Claims may order the consolidation 

36 of the actions in that court or transfer any actions to or among the agency 

37 boards involved. 

38 (e) JUDGMENTS AS TO FEWER THAN ALL CLAIMS OR PARTIES.—In an 

39 action filed pursuant to this chapter involving 2 or more claims, counter40 claims, cross-claims, or third-party claims, and where a portion of one of 

41 the claims can be divided for purposes of decision or judgment, and in any 


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1 action where multiple parties are involved, the court, whenever appropriate, 

2 may enter a judgment as to one or more but fewer than all of the claims 

3 or portions of claims or parties. 

4 (f) ADVISORY OPINIONS.— 

5 (1) IN GENERAL.—Whenever an action involving an issue described 

6 in paragraph (2) is pending in a district court of the United States, 

7 the district court may request an agency board to provide the court 

8 with an advisory opinion on the matters of contract interpretation 

9 under consideration. 

10 (2) APPLICABLE ISSUE.—An issue referred to in paragraph (1) is 

11 any issue that could be the proper subject of a final decision of a con12 tracting officer appealable under this chapter. 

13 (3) REFERRAL TO AGENCY BOARD WITH JURISDICTION.—A district 

14 court shall direct a request under paragraph (1) to the agency board 

15 having jurisdiction under this chapter to adjudicate appeals of contract 

16 claims under the contract being interpreted by the court. 

17 (4) TIMELY RESPONSE.—After receiving a request for an advisory 

18 opinion under paragraph (1), an agency board shall provide the advi19 sory opinion in a timely manner to the district court making the re20 quest. 

21 § 6908. Payment of claims 

22 (a) JUDGMENTS.—Any judgment against the Federal Government on a 

23 claim under this chapter shall be paid promptly in accordance with the pro24 cedures provided by section 1304 of title 31. 

25 (b) MONETARY AWARDS.—Any monetary award to a contractor by an 

26 agency board shall be paid promptly in accordance with the procedures con27 tained in subsection (a). 

28 (c) REIMBURSEMENT.—Payments made pursuant to subsections (a) and 

29 (b) shall be reimbursed to the fund provided by section 1304 of title 31 by 

30 the agency whose appropriations were used for the contract out of available 

31 amounts or by obtaining additional appropriations for purposes of reim32 bursement. 

33 (d) TENNESSEE VALLEY AUTHORITY.— 

34 (1) JUDGMENTS.—Notwithstanding subsections (a) to (c), any judg35 ment against the Tennessee Valley Authority on a claim under this 

36 chapter shall be paid promptly in accordance with section 9(b) of the 

37 Tennessee Valley Authority Act of 1933 (16 U.S.C. 831h(b)). 

38 (2) MONETARY AWARDS.—Notwithstanding subsections (a) to (c), 

39 any monetary award to a contractor by the agency board of the Ten40 nessee Valley Authority shall be paid in accordance with section 9(b) 

41 of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831h(b)). 


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1 § 6909. Interest 

2 (a) PERIOD.— 

3 (1) IN GENERAL.—Interest on an amount found due a contractor on 

4 a claim shall be paid to the contractor for the period beginning with 

5 the date the contracting officer receives the contractor’s claim, pursu6 ant to section 6903(a) of this title, until the date of payment of the 

7 claim. 

8 (2) DEFECTIVE CERTIFICATION.—On a claim for which the certifi9 cation under section 6903(b)(1) of this title is found to be defective, 

10 any interest due under this section shall be paid for the period begin11 ning with the date the contracting officer initially receives the contrac12 tor’s claim until the date of payment of the claim. 

13 (b) RATE.—Interest shall accrue and be paid at a rate which the Sec14 retary of the Treasury shall specify as applicable for each successive 6- 

15 month period. The rate shall be determined by the Secretary of the Treas16 ury taking into consideration current private commercial rates of interest 

17 for new loans maturing in approximately 5 years. 

18 Subtitle III—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 

19 CHAPTER 81—DRUG-FREE WORKPLACE 

Sec. 

8101. Definitions and construction. 

8102. Drug-free workplace requirements for Federal contractors. 

8103. Drug-free workplace requirements for Federal grant recipients. 

8104. Employee sanctions and remedies. 

8105. Waiver. 

8106. Regulations. 

20 § 8101. Definitions and construction 

21 (a) DEFINITIONS.—In this chapter: 

22 (1) CONTRACTOR.—The term ‘‘contractor’’ means the department, 

23 division, or other unit of a person responsible for the performance 

24 under the contract. 

25 (2) CONTROLLED SUBSTANCE.—The term ‘‘controlled substance’’ 

26 means a controlled substance in schedules I through V of section 202 

27 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 

28 (21 U.S.C. 812). 

29 (3) CONVICTION.—The term ‘‘conviction’’ means a finding of guilt 

30 (including a plea of nolo contendere), an imposition of sentence, or 

31 both, by a judicial body charged with the responsibility to determine 

32 violations of Federal or State criminal drug statutes. 


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1 (4) CRIMINAL DRUG STATUTE.—The term ‘‘criminal drug statute’’ 

2 means a criminal statute involving manufacture, distribution, dispensa3 tion, use, or possession of a controlled substance. 

4 (5) DRUG-FREE WORKPLACE.—The term ‘‘drug-free workplace’’ 

5 means a site of an entity— 

6 (A) for the performance of work done in connection with a spe7 cific contract or grant described in section 8102 or 8103 of this 

8 title; and 

9 (B) at which employees of the entity are prohibited from engag10 ing in the unlawful manufacture, distribution, dispensation, pos11 session, or use of a controlled substance in accordance with the 

12 requirements of the Anti-Drug Abuse Act of 1988 (Public Law 

13 100–690, 102 Stat. 4181). 

14 (6) EMPLOYEE.—The term ‘‘employee’’ means the employee of a 

15 contractor or grantee directly engaged in the performance of work pur16 suant to the contract or grant described in section 8102 or 8103 of 

17 this title. 

18 (7) FEDERAL AGENCY.—The term ‘‘Federal agency’’ means an agen19 cy as defined in section 552(f) of title 5. 

20 (8) GRANTEE.—The term ‘‘grantee’’ means the department, division, 

21 or other unit of a person responsible for the performance under the 

22 grant. 

23 (b) CONSTRUCTION.—This chapter does not require law enforcement 

24 agencies to comply with this chapter if the head of the agency determines 

25 it would be inappropriate in connection with the agency’s undercover oper26 ations. 

27 § 8102. Drug-free workplace requirements for Federal con28 tractors 

29 (a) IN GENERAL.— 

30 (1) PERSONS OTHER THAN INDIVIDUALS.—A person other than an 

31 individual shall not be considered a responsible source (as defined in 

32 section 113 of this title) for the purposes of being awarded a contract 

33 for the procurement of any property or services of a value greater than 

34 the simplified acquisition threshold (as defined in section 134 of this 

35 title) by a Federal agency, other than a contract for the procurement 

36 of commercial items (as defined in section 103 of this title), unless the 

37 person agrees to provide a drug-free workplace by— 

38 (A) publishing a statement notifying employees that the unlaw39 ful manufacture, distribution, dispensation, possession, or use of 

40 a controlled substance is prohibited in the person’s workplace and 


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1 specifying the actions that will be taken against employees for vio2 lations of the prohibition; 

3 (B) establishing a drug-free awareness program to inform em4 ployees about— 

5 (i) the dangers of drug abuse in the workplace; 

6 (ii) the person’s policy of maintaining a drug-free work7 place; 

8 (iii) available drug counseling, rehabilitation, and employee 

9 assistance programs; and 

10 (iv) the penalties that may be imposed on employees for 

11 drug abuse violations; 

12 (C) making it a requirement that each employee to be engaged 

13 in the performance of the contract be given a copy of the state14 ment required by subparagraph (A); 

15 (D) notifying the employee in the statement required by sub16 paragraph (A) that as a condition of employment on the contract 

17 the employee will— 

18 (i) abide by the terms of the statement; and 

19 (ii) notify the employer of any criminal drug statute convic20 tion for a violation occurring in the workplace no later than 

21 5 days after the conviction; 

22 (E) notifying the contracting agency within 10 days after receiv23 ing notice under subparagraph (D)(ii) from an employee or other24 wise receiving actual notice of a conviction; 

25 (F) imposing a sanction on, or requiring the satisfactory partici26 pation in a drug abuse assistance or rehabilitation program by, 

27 any employee who is convicted, as required by section 8104 of this 

28 title; and 

29 (G) making a good faith effort to continue to maintain a drug30 free workplace through implementation of subparagraphs (A) to 

31 (F). 

32 (2) INDIVIDUALS.—A Federal agency shall not make a contract with 

33 an individual unless the individual agrees not to engage in the unlawful 

34 manufacture, distribution, dispensation, possession, or use of a con35 trolled substance in the performance of the contract. 

36 (b) SUSPENSION, TERMINATION, OR DEBARMENT OF CONTRACTOR.— 

37 (1) GROUNDS FOR SUSPENSION, TERMINATION, OR DEBARMENT.— 

38 Payment under a contract awarded by a Federal agency may be sus39 pended and the contract may be terminated, and the contractor or indi40 vidual who made the contract with the agency may be suspended or 


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1 debarred in accordance with the requirements of this section, if the 

2 head of the agency determines that— 

3 (A) the contractor is violating, or has violated, the requirements 

4 of subparagraph (A), (B), (C), (D), (E), or (F) of subsection 

5 (a)(1); or 

6 (B) the number of employees of the contractor who have been 

7 convicted of violations of criminal drug statutes for violations oc8 curring in the workplace indicates that the contractor has failed 

9 to make a good faith effort to provide a drug-free workplace as 

10 required by subsection (a). 

11 (2) CONDUCT OF SUSPENSION, TERMINATION, AND DEBARMENT

12 PROCEEDINGS.—A contracting officer who determines in writing that 

13 cause for suspension of payments, termination, or suspension or debar14 ment exists shall initiate an appropriate action, to be conducted by the 

15 agency concerned in accordance with the Federal Acquisition Regula16 tion and applicable agency procedures. The Federal Acquisition Regula17 tion shall be revised to include rules for conducting suspension and de18 barment proceedings under this subsection, including rules providing 

19 notice, opportunity to respond in writing or in person, and other proce20 dures as may be necessary to provide a full and fair proceeding to a 

21 contractor or individual. 

22 (3) EFFECT OF DEBARMENT.—A contractor or individual debarred 

23 by a final decision under this subsection is ineligible for award of a 

24 contract by a Federal agency, and for participation in a future procure25 ment by a Federal agency, for a period specified in the decision, not 

26 to exceed 5 years. 

27 § 8103. Drug-free workplace requirements for Federal grant 

28 recipients 

29 (a) IN GENERAL.— 

30 (1) PERSONS OTHER THAN INDIVIDUALS.—A person other than an 

31 individual shall not receive a grant from a Federal agency unless the 

32 person agrees to provide a drug-free workplace by— 

33 (A) publishing a statement notifying employees that the unlaw34 ful manufacture, distribution, dispensation, possession, or use of 

35 a controlled substance is prohibited in the grantee’s workplace and 

36 specifying the actions that will be taken against employees for vio37 lations of the prohibition; 

38 (B) establishing a drug-free awareness program to inform em39 ployees about— 

40 (i) the dangers of drug abuse in the workplace; 


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1 (ii) the grantee’s policy of maintaining a drug-free work2 place; 

3 (iii) available drug counseling, rehabilitation, and employee 

4 assistance programs; and 

5 (iv) the penalties that may be imposed on employees for 

6 drug abuse violations; 

7 (C) making it a requirement that each employee to be engaged 

8 in the performance of the grant be given a copy of the statement 

9 required by subparagraph (A); 

10 (D) notifying the employee in the statement required by sub11 paragraph (A) that as a condition of employment in the grant the 

12 employee will— 

13 (i) abide by the terms of the statement; and 

14 (ii) notify the employer of any criminal drug statute convic15 tion for a violation occurring in the workplace no later than 

16 5 days after the conviction; 

17 (E) notifying the granting agency within 10 days after receiving 

18 notice under subparagraph (D)(ii) from an employee or otherwise 

19 receiving actual notice of a conviction; 

20 (F) imposing a sanction on, or requiring the satisfactory partici21 pation in a drug abuse assistance or rehabilitation program by, 

22 any employee who is convicted, as required by section 8104 of this 

23 title; and 

24 (G) making a good faith effort to continue to maintain a drug25 free workplace through implementation of subparagraphs (A) to 

26 (F). 

27 (2) INDIVIDUALS.—A Federal agency shall not make a grant to an 

28 individual unless the individual agrees not to engage in the unlawful 

29 manufacture, distribution, dispensation, possession, or use of a con30 trolled substance in conducting an activity with the grant. 

31 (b) SUSPENSION, TERMINATION, OR DEBARMENT OF GRANTEE.— 

32 (1) GROUNDS FOR SUSPENSION, TERMINATION, OR DEBARMENT.— 

33 Payment under a grant awarded by a Federal agency may be sus34 pended and the grant may be terminated, and the grantee may be sus35 pended or debarred, in accordance with the requirements of this sec36 tion, if the head of the agency or the official designee of the head of 

37 the agency determines in writing that— 

38 (A) the grantee is violating, or has violated, the requirements 

39 of subparagraph (A), (B), (C), (D), (E), (F), or (G) of subsection 

40 (a)(1); or 


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1 (B) the number of employees of the grantee who have been con2 victed of violations of criminal drug statutes for violations occur3 ring in the workplace indicates that the grantee has failed to make 

4 a good faith effort to provide a drug-free workplace as required 

5 by subsection (a)(1). 

6 (2) CONDUCT OF SUSPENSION, TERMINATION, AND DEBARMENT

7 PROCEEDINGS.—A suspension of payments, termination, or suspension 

8 or debarment proceeding subject to this subsection shall be conducted 

9 in accordance with applicable law, including Executive Order 12549 or 

10 any superseding executive order and any regulations prescribed to im11 plement the law or executive order. 

12 (3) EFFECT OF DEBARMENT.—A grantee debarred by a final deci13 sion under this subsection is ineligible for award of a grant by a Fed14 eral agency, and for participation in a future grant by a Federal agen15 cy, for a period specified in the decision, not to exceed 5 years. 

16 § 8104. Employee sanctions and remedies 

17 Within 30 days after receiving notice from an employee of a conviction 

18 pursuant to section 8102(a)(1)(D)(ii) or 8103(a)(1)(D)(ii) of this title, a 

19 contractor or grantee shall— 

20 (1) take appropriate personnel action against the employee, up to 

21 and including termination; or 

22 (2) require the employee to satisfactorily participate in a drug abuse 

23 assistance or rehabilitation program approved for those purposes by a 

24 Federal, State, or local health, law enforcement, or other appropriate 

25 agency. 

26 § 8105. Waiver 

27 (a) IN GENERAL.—The head of an agency may waive a suspension of 

28 payments, termination of the contract or grant, or suspension or debarment 

29 of a contractor or grantee under this chapter with respect to a particular 

30 contract or grant if— 

31 (1) in the case of a contract, the head of the agency determines 

32 under section 8102(b)(1) of this title, after a final determination is 

33 issued under section 8102(b)(1), that suspension of payments, termi34 nation of the contract, suspension or debarment of the contractor, or 

35 refusal to permit a person to be treated as a responsible source for a 

36 contract would severely disrupt the operation of the agency to the det37 riment of the Federal Government or the general public; or 

38 (2) in the case of a grant, the head of the agency determines that 

39 suspension of payments, termination of the grant, or suspension or de40 barment of the grantee would not be in the public interest. 


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1 (b) WAIVER AUTHORITY MAY NOT BE DELEGATED.—The authority of 

2 the head of an agency under this section to waive a suspension, termination, 

3 or debarment shall not be delegated. 

4 § 8106. Regulations 

5 Government-wide regulations governing actions under this chapter shall 

6 be issued pursuant to part B of subtitle I of this title. 

7 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. 

8 § 8301. Definitions 

9 In this chapter: 

10 (1) PUBLIC BUILDING, PUBLIC USE, AND PUBLIC WORK.—The terms 

11 ‘‘public building’’, ‘‘public use’’, and ‘‘public work’’ mean a public 

12 building of, use by, and a public work of, the Federal Government, the 

13 District of Columbia, Puerto Rico, American Samoa, and the Virgin Is14 lands. 

15 (2) UNITED STATES.—The term ‘‘United States’’ includes any place 

16 subject to the jurisdiction of the United States. 

17 § 8302. American materials required for public use 

18 (a) IN GENERAL.—Only unmanufactured articles, materials, and supplies 

19 that have been mined or produced in the United States, and only manufac20 tured articles, materials, and supplies that have been manufactured in the 

21 United States substantially all from articles, materials, or supplies mined, 

22 produced, or manufactured in the United States, shall be acquired for public 

23 use unless the head of the department or independent establishment con24 cerned determines their acquisition to be inconsistent with the public inter25 est or their cost to be unreasonable. 

26 (b) EXCEPTIONS.—This section does not apply— 

27 (1) to articles, materials, or supplies for use outside the United 

28 States; 

29 (2) if articles, materials, or supplies of the class or kind to be used, 

30 or the articles, materials, or supplies from which they are manufac31 tured, are not mined, produced, or manufactured in the United States 

32 in sufficient and reasonably available commercial quantities and are not 

33 of a satisfactory quality; and 

34 (3) to manufactured articles, materials, or supplies procured under 

35 any contract with an award value that is not more than the micro-pur36 chase threshold under section 1902 of this title. 


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1 § 8303. Contracts for public works 

2 (a) IN GENERAL.—Every contract for the construction, alteration, or re3 pair of any public building or public work in the United States shall contain 

4 a provision that in the performance of the work the contractor, subcontrac5 tors, material men, or suppliers shall use only— 

6 (1) unmanufactured articles, materials, and supplies that have been 

7 mined or produced in the United States; and 

8 (2) manufactured articles, materials, and supplies that have been 

9 manufactured in the United States substantially all from articles, mate10 rials, or supplies mined, produced, or manufactured in the United 

11 States. 

12 (b) EXCEPTIONS.— 

13 (1) IN GENERAL.—This section does not apply— 

14 (A) to articles, materials, or supplies for use outside the United 

15 States; 

16 (B) if articles, materials, or supplies of the class or kind to be 

17 used, or the articles, materials, or supplies from which they are 

18 manufactured, are not mined, produced, or manufactured in the 

19 United States in sufficient and reasonably available commercial 

20 quantities and are not of a satisfactory quality; and 

21 (C) to manufactured articles, materials, or supplies procured 

22 under any contract with an award value that is not more than the 

23 micro-purchase threshold under section 1902 of this title. 

24 (2) PARTICULAR ARTICLE, MATERIAL, OR SUPPLY.—If the head of 

25 the department or independent establishment making the contract finds 

26 that it is impracticable to comply with subsection (a) for a particular 

27 article, material, or supply or that it would unreasonably increase the 

28 cost, an exception shall be noted in the specifications for that article, 

29 material, or supply and a public record of the findings that justified 

30 the exception shall be made. 

31 (3) INCONSISTENT WITH PUBLIC INTEREST.—Subsection (a) shall be 

32 regarded as requiring the purchase, for public use within the United 

33 States, of articles, materials, or supplies manufactured in the United 

34 States in sufficient and reasonably available commercial quantities and 

35 of a satisfactory quality, unless the head of the department or inde36 pendent establishment concerned determines their purchase to be in37 consistent with the public interest or their cost to be unreasonable. 

38 (c) RESULTS OF FAILURE TO COMPLY.—If the head of a department, bu39 reau, agency, or independent establishment that has made a contract con40 taining the provision required by subsection (a) finds that there has been 

41 a failure to comply with the provision in the performance of the contract, 


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1 the head of the department, bureau, agency, or independent establishment 

2 shall make the findings public. The findings shall include the name of the 

3 contractor obligated under the contract. The contractor, and any subcon4 tractor, material man, or supplier associated or affiliated with the con5 tractor, shall not be awarded another contract for the construction, alter6 ation, or repair of any public building or public work for 3 years after the 

7 findings are made public. 

8 § 8304. Waiver rescission 

9 (a) TYPE OF AGREEMENT.—An agreement referred to in subsection (b) 

10 is a reciprocal defense procurement memorandum of understanding between 

11 the United States and a foreign country pursuant to which the Secretary 

12 of Defense has prospectively waived this chapter for certain products in that 

13 country. 

14 (b) DETERMINATION BY SECRETARY OF DEFENSE.—If the Secretary of 

15 Defense, after consultation with the United States Trade Representative, 

16 determines that a foreign country that is party to an agreement described 

17 in subsection (a) has violated the agreement by discriminating against cer18 tain types of products produced in the United States that are covered by 

19 the agreement, the Secretary of Defense shall rescind the Secretary’s blan20 ket waiver of this chapter with respect to those types of products produced 

21 in that country. 

22 § 8305. Annual report 

23 Not later than 60 days after the end of each fiscal year, the Secretary 

24 of Defense shall submit to Congress a report on the amount of purchases 

25 by the Department of Defense from foreign entities in that fiscal year. The 

26 report shall separately indicate the dollar value of items for which this chap27 ter was waived pursuant to— 

28 (1) a reciprocal defense procurement memorandum of understanding 

29 described in section 8304(a) of this title; 

30 (2) the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.); or 

31 (3) an international agreement to which the United States is a party. 

32 CHAPTER 85—COMMITTEE FOR PURCHASE FROM 

33 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. 

34 § 8501. Definitions 

35 In this chapter: 

36 (1) BLIND.—The term ‘‘blind’’ refers to an individual or class of in37 dividuals whose central visual acuity does not exceed 20/200 in the betVerDate Aug 31 2005 00:57 Sep 19, 2006 Jkt 049200 PO 00000 Frm 00172 Fmt 6652 Sfmt 6221 E:\BILLS\H5414.RH H5414

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1 ter eye with correcting lenses or whose visual acuity, if better than 20/ 

2 200, is accompanied by a limit to the field of vision in the better eye 

3 to such a degree that its widest diameter subtends an angle of no 

4 greater than 20 degrees. 

5 (2) COMMITTEE.—The term ‘‘Committee’’ means the Committee for 

6 Purchase From People Who Are Blind or Severely Disabled established 

7 under section 8502 of this title. 

8 (3) DIRECT LABOR.—The term ‘‘direct labor’’— 

9 (A) includes all work required for preparation, processing, and 

10 packing of a product, or work directly relating to the performance 

11 of a service; but 

12 (B) does not include supervision, administration, inspection, or 

13 shipping. 

14 (4) ENTITY OF THE FEDERAL GOVERNMENT AND FEDERAL GOVERN15 MENT.—The terms ‘‘entity of the Federal Government’’ and ‘‘Federal 

16 Government’’ include an entity of the legislative or judicial branch, a 

17 military department or executive agency (as defined in sections 102 

18 and 105 of title 5, respectively), the United States Postal Service, and 

19 a nonappropriated fund instrumentality under the jurisdiction of the 

20 Armed Forces. 

21 (5) OTHER SEVERELY DISABLED.—The term ‘‘other severely dis22 abled’’ means an individual or class of individuals under a physical or 

23 mental disability, other than blindness, which (according to criteria es24 tablished by the Committee after consultation with appropriate entities 

25 of the Federal Government and taking into account the views of non26 Federal Government entities representing the disabled) constitutes a 

27 substantial handicap to employment and is of a nature that prevents 

28 the individual from currently engaging in normal competitive employ29 ment. 

30 (6) QUALIFIED NONPROFIT AGENCY FOR OTHER SEVERELY DIS31 ABLED.—The term ‘‘qualified nonprofit agency for other severely dis32 abled’’ means an agency— 

33 (A)(i) organized under the laws of the United States or a State; 

34 (ii) operated in the interest of severely disabled individuals who 

35 are not blind; and 

36 (iii) of which no part of the net income of the agency inures 

37 to the benefit of a shareholder or other individual; 

38 (B) that complies with any applicable occupational health and 

39 safety standard prescribed by the Secretary of Labor; and 

40 (C) that in the production of products and in the provision of 

41 services (whether or not the products or services are procured 


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1 under this chapter) during the fiscal year employs blind or other 

2 severely disabled individuals for at least 75 percent of the hours 

3 of direct labor required for the production or provision of the 

4 products or services. 

5 (7) QUALIFIED NONPROFIT AGENCY FOR THE BLIND.—The term 

6 ‘‘qualified nonprofit agency for the blind’’ means an agency— 

7 (A)(i) organized under the laws of the United States or a State; 

8 (ii) operated in the interest of blind individuals; and 

9 (iii) of which no part of the net income of the agency inures 

10 to the benefit of a shareholder or other individual; 

11 (B) that complies with any applicable occupational health and 

12 safety standard prescribed by the Secretary of Labor; and 

13 (C) that in the production of products and in the provision of 

14 services (whether or not the products or services are procured 

15 under this chapter) during the fiscal year employs blind individ16 uals for at least 75 percent of the hours of direct labor required 

17 for the production or provision of the products or services. 

18 (8) SEVERELY DISABLED INDIVIDUAL.—The term ‘‘severely disabled 

19 individual’’ means an individual or class of individuals under a physical 

20 or mental disability, other than blindness, which (according to criteria 

21 established by the Committee after consultation with appropriate enti22 ties of the Federal Government and taking into account the views of 

23 non-Federal Government entities representing the disabled) constitutes 

24 a substantial handicap to employment and is of a nature that prevents 

25 the individual from currently engaging in normal competitive employ26 ment. 

27 (9) STATE.—The term ‘‘State’’ includes the District of Columbia, 

28 Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 

29 Northern Mariana Islands. 

30 § 8502. Committee for Purchase From People Who Are Blind 

31 or Severely Disabled 

32 (a) ESTABLISHMENT.—There is a Committee for Purchase From People 

33 Who Are Blind or Severely Disabled. 

34 (b) COMPOSITION.—The Committee consists of 15 members appointed by 

35 the President as follows: 

36 (1) One officer or employee from each of the following, nominated 

37 by the head of the department or agency: 

38 (A) The Department of Agriculture. 

39 (B) The Department of Defense. 

40 (C) The Department of the Army. 

41 (D) The Department of the Navy. 


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1 (E) The Department of the Air Force. 

2 (F) The Department of Education. 

3 (G) The Department of Commerce. 

4 (H) The Department of Veterans Affairs. 

5 (I) The Department of Justice. 

6 (J) The Department of Labor. 

7 (K) The General Services Administration. 

8 (2) One member from individuals who are not officers or employees 

9 of the Federal Government and who are conversant with the problems 

10 incident to the employment of the blind. 

11 (3) One member from individuals who are not officers or employees 

12 of the Federal Government and who are conversant with the problems 

13 incident to the employment of other severely disabled individuals. 

14 (4) One member from individuals who are not officers or employees 

15 of the Federal Government and who represent blind individuals em16 ployed in qualified nonprofit agencies for the blind. 

17 (5) One member from individuals who are not officers or employees 

18 of the Federal Government and who represent severely disabled individ19 uals (other than blind individuals) employed in qualified nonprofit 

20 agencies for other severely disabled individuals. 

21 (c) TERMS OF OFFICE.—Members appointed under paragraph (2), (3), 

22 (4), or (5) of subsection (b) shall be appointed for terms of 5 years and 

23 may be reappointed if the member meets the qualifications prescribed by 

24 those paragraphs. 

25 (d) CHAIRMAN.—The members of the Committee shall elect one of the 

26 members to be Chairman. 

27 (e) VACANCY.— 

28 (1) MANNER IN WHICH FILLED.—A vacancy in the membership of 

29 the Committee shall be filled in the manner in which the original ap30 pointment was made. 

31 (2) UNFULFILLED TERM.—A member appointed under paragraph 

32 (2), (3), (4), or (5) of subsection (b) to fill a vacancy occurring prior 

33 to the expiration of the term for which the predecessor was appointed 

34 shall be appointed only for the remainder of the term. The member 

35 may serve after the expiration of a term until a successor takes office. 

36 (f) PAY AND TRAVEL EXPENSES.— 

37 (1) AMOUNT TO WHICH MEMBERS ARE ENTITLED.—Except as pro38 vided in paragraph (2), members of the Committee are entitled to re39 ceive the daily equivalent of the maximum annual rate of basic pay 

40 payable under section 5376 of title 5 for each day (including travel41 time) during which they perform services for the Committee. A member 


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1 is entitled to travel expenses, including a per diem allowance instead 

2 of subsistence, as provided under section 5703 of title 5. 

3 (2) OFFICERS OR EMPLOYEES OF THE FEDERAL GOVERNMENT.— 

4 Members who are officers or employees of the Federal Government may 

5 not receive additional pay because of their service on the Committee. 

6 (g) STAFF.— 

7 (1) APPOINTMENT AND COMPENSATION.—Subject to rules the Com8 mittee may adopt and to chapters 33 and 51 and subchapter III of 

9 chapter 53 of title 5, the Chairman may appoint and fix the pay of 

10 personnel the Committee determines are necessary to assist it in car11 rying out this chapter. 

12 (2) PERSONNEL FROM OTHER ENTITIES.—On request of the Com13 mittee, the head of an entity of the Federal Government may detail, 

14 on a reimbursable basis, any personnel of the entity to the Committee 

15 to assist it in carrying out this chapter. 

16 (h) OBTAINING OFFICIAL INFORMATION.—The Committee may secure di17 rectly from an entity of the Federal Government information necessary to 

18 enable it to carry out this chapter. On request of the Chairman, the head 

19 of the entity shall furnish the information to the Committee. 

20 (i) ADMINISTRATIVE SUPPORT SERVICES.—The Administrator of General 

21 Services shall provide to the Committee, on a reimbursable basis, adminis22 trative support services the Committee requests. 

23 (j) ANNUAL REPORT.—Not later than December 31 of each year, the 

24 Committee shall transmit to the President a report that includes the names 

25 of the Committee members serving in the prior fiscal year, the dates of 

26 Committee meetings in that year, a description of the activities of the Com27 mittee under this chapter in that year, and any recommendations for 

28 changes in this chapter which the Committee determines are necessary. 

29 § 8503. Duties and powers of the Committee 

30 (a) PROCUREMENT LIST.— 

31 (1) MAINTENANCE OF LIST.—The Committee shall maintain and 

32 publish in the Federal Register a procurement list. The list shall in33 clude the following products and services determined by the Committee 

34 to be suitable for the Federal Government to procure pursuant to this 

35 chapter: 

36 (A) Products produced by a qualified nonprofit agency for the 

37 blind or by a qualified nonprofit agency for other severely disabled. 

38 (B) The services those agencies provide. 

39 (2) CHANGES TO LIST.—The Committee may, by rule made in ac40 cordance with the requirements of section 553(b) to (e) of title 5, add 


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1 to and remove from the procurement list products so produced and 

2 services so provided. 

3 (b) FAIR MARKET PRICE.—The Committee shall determine the fair mar4 ket price of products and services contained on the procurement list that 

5 are offered for sale to the Federal Government by a qualified nonprofit 

6 agency for the blind or a qualified nonprofit agency for other severely dis7 abled. The Committee from time to time shall revise its price determinations 

8 with respect to those products and services in accordance with changing 

9 market conditions. 

10 (c) CENTRAL NONPROFIT AGENCY OR AGENCIES.—The Committee shall 

11 designate a central nonprofit agency or agencies to facilitate the distribu12 tion, by direct allocation, subcontract, or any other means, of orders of the 

13 Federal Government for products and services on the procurement list 

14 among qualified nonprofit agencies for the blind or qualified nonprofit agen15 cies for other severely disabled. 

16 (d) REGULATIONS.—The Committee— 

17 (1) may prescribe regulations regarding specifications for products 

18 and services on the procurement list, the time of their delivery, and 

19 other matters as necessary to carry out this chapter; and 

20 (2) shall prescribe regulations providing that when the Federal Gov21 ernment purchases products produced and offered for sale by qualified 

22 nonprofit agencies for the blind or qualified nonprofit agencies for 

23 other severely disabled, priority shall be given to products produced and 

24 offered for sale by qualified nonprofit agencies for the blind. 

25 (e) STUDY AND EVALUATION OF ACTIVITIES.—The Committee shall 

26 make a continuing study and evaluation of its activities under this chapter 

27 to ensure effective and efficient administration of this chapter. The Com28 mittee on its own or in cooperation with other public or nonprofit private 

29 agencies may study— 

30 (1) problems related to the employment of the blind and other se31 verely disabled individuals; and 

32 (2) the development and adaptation of production methods that 

33 would enable a greater utilization of the blind and other severely dis34 abled individuals. 

35 § 8504. Procurement requirements for the Federal Govern36 ment 

37 (a) IN GENERAL.—An entity of the Federal Government intending to pro38 cure a product or service on the procurement list referred to in section 8503 

39 of this title shall procure the product or service from a qualified nonprofit 

40 agency for the blind or a qualified nonprofit agency for other severely dis41 abled in accordance with regulations of the Committee and at the price the 


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1 Committee establishes if the product or service is available within the period 

2 required by the entity. 

3 (b) EXCEPTION.—This section does not apply to the procurement of a 

4 product that is available from an industry established under chapter 307 

5 of title 18 and that is required under section 4124 of title 18 to be procured 

6 from that industry. 

7 § 8505. Audit 

8 For the purpose of audit and examination, the Comptroller General shall 

9 have access to the books, documents, papers, and other records of— 

10 (1) the Committee and of each central nonprofit agency the Com11 mittee designates under section 8503(c) of this title; and 

12 (2) qualified nonprofit agencies for the blind and qualified nonprofit 

13 agencies for other severely disabled that have sold products or services 

14 under this chapter to the extent those books, documents, papers, and 

15 other records relate to the activities of the agency in a fiscal year in 

16 which a sale was made under this chapter. 

17 § 8506. Authorization of appropriations 

18 Necessary amounts may be appropriated to the Committee to carry out 

19 this chapter. 

20 CHAPTER 87—KICKBACKS 

Sec. 

8701. Definitions. 

8702. Prohibited conduct. 

8703. Contractor responsibilities. 

8704. Inspection authority. 

8705. Administrative offsets. 

8706. Civil actions. 

8707. Criminal penalties. 

21 § 8701. Definitions 

22 In this chapter: 

23 (1) CONTRACTING AGENCY.—The term ‘‘contracting agency’’, when 

24 used with respect to a prime contractor, means a department, agency, 

25 or establishment of the Federal Government that enters into a prime 

26 contract with a prime contractor. 

27 (2) KICKBACK.—The term ‘‘kickback’’ means any money, fee, com28 mission, credit, gift, gratuity, thing of value, or compensation of any 

29 kind that is provided to a prime contractor, prime contractor employee, 

30 subcontractor, or subcontractor employee to improperly obtain or re31 ward favorable treatment in connection with a prime contract or a sub32 contract relating to a prime contract. 

33 (3) PRIME CONTRACT.—The term ‘‘prime contract’’ means a con34 tract or contractual action entered into by the Federal Government to 

35 obtain supplies, materials, equipment, or services of any kind. 


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1 (4) PRIME CONTRACTOR.—The term ‘‘prime contractor’’ means a 

2 person that has entered into a prime contract with the Federal Govern3 ment. 

4 (5) PRIME CONTRACTOR EMPLOYEE.—The term ‘‘prime contractor 

5 employee’’ means an officer, partner, employee, or agent of a prime 

6 contractor. 

7 (6) SUBCONTRACT.—The term ‘‘subcontract’’ means a contract or 

8 contractual action entered into by a prime contractor or subcontractor 

9 to obtain supplies, materials, equipment, or services of any kind under 

10 a prime contract. 

11 (7) SUBCONTRACTOR.—The term ‘‘subcontractor’’— 

12 (A) means a person, other than the prime contractor, that offers 

13 to furnish or furnishes supplies, materials, equipment, or services 

14 of any kind under a prime contract or a subcontract entered into 

15 in connection with the prime contract; and 

16 (B) includes a person that offers to furnish or furnishes general 

17 supplies to the prime contractor or a higher tier subcontractor. 

18 (8) SUBCONTRACTOR EMPLOYEE.—The term ‘‘subcontractor em19 ployee’’ means an officer, partner, employee, or agent of a subcon20 tractor. 

21 § 8702. Prohibited conduct 

22 A person may not— 

23 (1) provide, attempt to provide, or offer to provide a kickback; 

24 (2) solicit, accept, or attempt to accept a kickback; or 

25 (3) include the amount of a kickback prohibited by paragraph (1) 

26 or (2) in the contract price— 

27 (A) a subcontractor charges a prime contractor or a higher tier 

28 subcontractor; or 

29 (B) a prime contractor charges the Federal Government. 

30 § 8703. Contractor responsibilities 

31 (a) REQUIREMENTS INCLUDED IN CONTRACTS.—Each contracting agency 

32 shall include in each prime contract awarded by the agency a requirement 

33 that the prime contractor shall— 

34 (1) have in place and follow reasonable procedures designed to pre35 vent and detect violations of section 8702 of this title in its own oper36 ations and direct business relationships; and 

37 (2) cooperate fully with a Federal Government agency investigating 

38 a violation of section 8702 of this title. 

39 (b) FULL COOPERATION REQUIRED.—Notwithstanding subsection (d), a 

40 prime contractor shall cooperate fully with a Federal Government agency in41 vestigating a violation of section 8702 of this title. 


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1 (c) REPORTING REQUIREMENT.— 

2 (1) IN GENERAL.—A prime contractor or subcontractor that has rea3 sonable grounds to believe that a violation of section 8702 of this title 

4 may have occurred shall promptly report the possible violation in writ5 ing to the inspector general of the contracting agency, the head of the 

6 contracting agency if the agency does not have an inspector general, 

7 or the Attorney General. 

8 (2) SUPPLYING INFORMATION AS FAVORABLE EVIDENCE.—In an ad9 ministrative or contractual action to suspend or debar a person who is 

10 eligible to enter into contracts with the Federal Government, evidence 

11 that the person has supplied information to the Federal Government 

12 pursuant to paragraph (1) is favorable evidence of the person’s respon13 sibility for the purposes of Federal procurement laws and regulations. 

14 (d) INAPPLICABILITY TO CERTAIN PRIME CONTRACTS.—Subsection (a) 

15 does not apply to a prime contract— 

16 (1) that is not greater than $100,000; or 

17 (2) for the acquisition of commercial items (as defined in section 103 

18 of this title). 

19 § 8704. Inspection authority 

20 (a) IN GENERAL.—To ascertain whether there has been a violation of sec21 tion 8702 of this title with respect to a prime contract, the Comptroller 

22 General and the inspector general of the contracting agency, or a represent23 ative of the contracting agency designated by the head of the agency if the 

24 agency does not have an inspector general, shall have access to and may 

25 inspect the facilities and audit the books and records, including electronic 

26 data or records, of a prime contractor or subcontractor under a prime con27 tract awarded by the agency. 

28 (b) EXCEPTION.—This section does not apply to a prime contract for the 

29 acquisition of commercial items (as defined in section 103 of this title). 

30 § 8705. Administrative offsets 

31 (a) DEFINITION.—In this section, the term ‘‘contracting officer’’ has the 

32 meaning given that term in chapter 69 of this title. 

33 (b) OFFSET AUTHORITY.—A contracting officer of a contracting agency 

34 may offset the amount of a kickback provided, accepted, or charged in viola35 tion of section 8702 of this title against amounts the Federal Government 

36 owes the prime contractor under the prime contract to which the kickback 

37 relates. 

38 (c) DUTIES OF PRIME CONTRACTOR.— 

39 (1) WITHHOLDING AND PAYING OVER OR RETAINING AMOUNTS.—On 

40 direction of a contracting officer of a contracting agency with respect 

41 to a prime contract, the prime contractor shall withhold from amounts 


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1 owed to a subcontractor under a subcontract of the prime contract the 

2 amount of a kickback which was or may be offset against the prime 

3 contractor under subsection (b). The contracting officer may order that 

4 amounts withheld— 

5 (A) be paid over to the contracting agency; or 

6 (B) be retained by the prime contractor if the Federal Govern7 ment has already offset the amount against the prime contractor. 

8 (2) NOTICE.—The prime contractor shall notify the contracting offi9 cer when an amount is withheld and retained under paragraph (1)(B). 

10 (d) OFFSET, DIRECTION, OR ORDER IS CLAIM OF FEDERAL GOVERN11 MENT.—An offset under subsection (b) or a direction or order of a con12 tracting officer under subsection (c) is a claim by the Federal Government 

13 for the purposes of chapter 69 of this title. 

14 § 8706. Civil actions 

15 (a) AMOUNT.—The Federal Government in a civil action may recover 

16 from a person— 

17 (1) that knowingly engages in conduct prohibited by section 8702 of 

18 this title a civil penalty equal to— 

19 (A) twice the amount of each kickback involved in the violation; 

20 and 

21 (B) not more than $10,000 for each occurrence of prohibited 

22 conduct; and 

23 (2) whose employee, subcontractor, or subcontractor employee vio24 lates section 8702 of this title by providing, accepting, or charging a 

25 kickback a civil penalty equal to the amount of that kickback. 

26 (b) STATUTE OF LIMITATIONS.—A civil action under this section must be 

27 brought within 6 years after the later of the date on which— 

28 (1) the prohibited conduct establishing the cause of action occurred; 

29 or 

30 (2) the Federal Government first knew or should reasonably have 

31 known that the prohibited conduct had occurred. 

32 § 8707. Criminal penalties 

33 A person that knowingly and willfully engages in conduct prohibited by 

34 section 8702 of this title shall be fined under title 18, imprisoned for not 

35 more than 10 years, or both. 

36 SEC. 4. CONFORMING AMENDMENT. 

37 Section 2410i(b)(1) of title 10, United States Code, is amended by strik38 ing ‘‘small purchase threshold’’ and substituting ‘‘simplified acquisition 

39 threshold’’. 

40 SEC. 5. CONFORMING CROSS-REFERENCES. 

41 (a) TITLE 5.—Title 5, United States Code, is amended as follows: 


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1 (1) In section 504(b)(1)(C)(ii)— 

2 (A) strike ‘‘section 6 of the Contract Disputes Act of 1978 (41 

3 U.S.C. 605)’’ and substitute ‘‘section 6903 of title 41’’; and 

4 (B) strike ‘‘section 8 of that Act (41 U.S.C. 607)’’ and sub5 stitute ‘‘section 6905 of title 41’’. 

6 (2) In section 551(1)(H), strike ‘‘chapter 2 of title 41;’’. 

7 (3) In section 595(c)(10), strike ‘‘title III of the Federal Property 

8 and Administrative Services Act of 1949, as amended (41 U.S.C. 251– 

9 260)’’ and substitute ‘‘part C of subtitle I of title 41’’. 

10 (4) In section 701(b)(1)(H), strike ‘‘chapter 2 of title 41;’’. 

11 (5) In section 3109(b)(3), strike ‘‘section 5’’ and substitute ‘‘section 

12 6101(b) to (d)’’. 

13 (6) In section 3374(c)(2), strike ‘‘section 27 of the Office of Federal 

14 Procurement Policy Act’’ and substitute ‘‘chapter 21 of title 41’’. 

15 (7) In section 3704(b)(2)(G), strike ‘‘section 27 of the Office of Fed16 eral Procurement Policy Act’’ and substitute ‘‘chapter 21 of title 41’’. 

17 (8) In section 4105, strike ‘‘section 5’’ and substitute ‘‘section 

18 6101(b) to (d)’’. 

19 (9) In section 5102(c)(30), strike ‘‘section 8 of the Contract Dis20 putes Act of 1978’’ and substitute ‘‘section 6905 of title 41’’. 

21 (10) In section 5372a— 

22 (A) in subsection (a)(1), strike ‘‘section 8 of the Contract Dis23 putes Act of 1978’’ and substitute ‘‘section 6905 of title 41’’; and 

24 (B) in subsection (a)(2), strike ‘‘section 8 of the Contract Dis25 putes Act of 1978’’ and substitute ‘‘section 6905 of title 41’’. 

26 (11) In section 7342(e)(1), strike ‘‘title III of the Federal Property 

27 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

28 substitute ‘‘part C of subtitle I of title 41’’. 

29 (12) In section 8709(a), strike ‘‘section 5’’ and substitute ‘‘section 

30 6101(b) to (d)’’. 

31 (13) In section 8714a(a), strike ‘‘section 5’’ and substitute ‘‘section 

32 6101(b) to (d)’’. 

33 (14) In section 8714b(a), strike ‘‘section 5’’ and substitute ‘‘section 

34 6101(b) to (d)’’. 

35 (15) In section 8714c(a), strike ‘‘section 5’’ and substitute ‘‘section 

36 6101(b) to (d)’’. 

37 (16) In section 8902(a), strike ‘‘section 5’’ and substitute ‘‘section 

38 6101(b) to (d)’’. 

39 (17) In section 8953(a)(1), strike ‘‘section 5’’ and substitute ‘‘sec40 tion 6101(b) to (d)’’. 


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1 (18) In section 8983(a)(1), strike ‘‘section 5’’ and substitute ‘‘sec2 tion 6101(b) to (d)’’. 

3 (19) In section 9003— 

4 (A) in subsection (a), strike ‘‘section 5’’ and substitute ‘‘section 

5 6101(b) to (d)’’; 

6 (B) in subsection (c)(3), before subparagraph (A), strike ‘‘the 

7 Contract Disputes Act of 1978’’ and substitute ‘‘chapter 69 of 

8 title 41’’; 

9 (C) in subsection (c)(3)(A), strike ‘‘section 8(c) of such Act’’ 

10 and substitute ‘‘section 6905(c) of title 41’’; and 

11 (D) in subsection (c)(3)(B), strike ‘‘section 10(a)(1) of such 

12 Act’’ and substitute ‘‘section 6904(b)(1) of title 41’’. 

13 (20) In section 9009, strike ‘‘section 26(f) of the Office of Federal 

14 Procurement Policy Act (41 U.S.C. 422(f))’’ and substitute ‘‘section 

15 1502(a) and (b) of title 41’’. 

16 (b) TITLE 10.—Title 10, United States Code, is amended as follows: 

17 (1) In section 133(c)(1), strike ‘‘section 16(3) of the Office of Fed18 eral Procurement Policy Act (41 U.S.C. 414(3))’’ and substitute ‘‘sec19 tion 1702(c) of title 41’’. 

20 (2) In section 2013(a), strike ‘‘section 3709 of the Revised Statutes 

21 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b)–(d) of title 41’’. 

22 (3) In section 2194(b)(2), strike ‘‘title III of the Federal Property 

23 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

24 substitute ‘‘part C of subtitle I of title 41’’. 

25 (4) In section 2201— 

26 (A) in subsection (b), strike ‘‘section 3732(a) of the Revised 

27 Statutes (41 U.S.C. 11(a))’’ and substitute ‘‘section 6301(a) and 

28 (b)(1)–(3) of title 41’’; and 

29 (B) in subsection (c), strike ‘‘section 3732(a) of the Revised 

30 Statutes (41 U.S.C. 11(a))’’ and substitute ‘‘section 6301(a) and 

31 (b)(1)–(3) of title 41’’. 

32 (5) In section 2207(b), strike ‘‘section 4(11) of the Office of Federal 

33 Procurement Policy Act (41 U.S.C. 403(11))’’ and substitute ‘‘section 

34 134 of title 41’’. 

35 (6) In section 2225(f)— 

36 (A) in paragraph (1), strike ‘‘section 16(3) of the Office of Fed37 eral Procurement Policy Act (41 U.S.C. 414(3))’’ and substitute 

38 ‘‘section 1702(c) of title 41’’; and 

39 (B) in paragraph (2), strike ‘‘section 4(11) of the Office of Fed40 eral Procurement Policy Act (41 U.S.C. 403(11))’’ and substitute 

41 ‘‘section 134 of title 41’’. 


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1 (7) In section 2226(b), strike ‘‘section 4(12) of the Office of Federal 

2 Procurement Policy Act (41 U.S.C. 403(12))’’ and substitute ‘‘section 

3 103 of title 41’’. 

4 (8) In section 2302— 

5 (A) in paragraph (3), strike ‘‘section 4 of the Office of Federal 

6 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘chapter 

7 1 of title 41’’; 

8 (B) in paragraph (6), strike ‘‘section 25(c)(1) of the Office of 

9 Federal Procurement Policy Act (41 U.S.C. 421(c)(1))’’ and sub10 stitute ‘‘section 1303(a)(1) of title 41’’; and 

11 (C) in paragraph (7), strike ‘‘section 4 of the Office of Federal 

12 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 

13 133 of title 41’’. 

14 (9) In section 2302a— 

15 (A) in subsection (a), strike ‘‘section 4(11) of the Office of Fed16 eral Procurement Policy Act’’ and substitute ‘‘section 134 of title 

17 41’’; and 

18 (B) in subsection (b), strike ‘‘section 33 of the Office of Federal 

19 Procurement Policy Act’’ and substitute ‘‘section 1905 of title 

20 41’’. 

21 (10) In section 2302b, strike ‘‘section 31 of the Office of Federal 

22 Procurement Policy Act’’ and substitute ‘‘section 1901 of title 41’’. 

23 (11) In section 2302c— 

24 (A) in subsection (a)(1), strike ‘‘section 30 of the Office of Fed25 eral Procurement Policy Act (41 U.S.C. 426)’’ and substitute 

26 ‘‘section 2301 of title 41’’; and 

27 (B) in subsection (b), strike ‘‘section 16(3) of the Office of Fed28 eral Procurement Policy Act (41 U.S.C. 414(3))’’ and substitute 

29 ‘‘section 1702(c) of title 41’’. 

30 (12) In section 2304— 

31 (A) in subsection (f)(1)(B)(iii), strike ‘‘section 16(3) of the Of32 fice of Federal Procurement Policy Act (41 U.S.C. 414(3))’’ and 

33 substitute ‘‘section 1702(c) of title 41’’; 

34 (B) in subsection (f)(1)(C), strike ‘‘section 18 of the Office of 

35 Federal Procurement Policy Act (41 U.S.C. 416)’’ and substitute 

36 ‘‘section 1707 of title 41’’; 

37 (C) in subsection (f)(2)(D), strike ‘‘the Javits-Wagner-O’Day 

38 Act (41 U.S.C. 46 et seq.)’’ and substitute ‘‘chapter 85 of title 

39 41’’; 


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1 (D) in subsection (g)(4), strike ‘‘section 31(f) of the Office of 

2 Federal Procurement Policy Act (41 U.S.C. 427)’’ and substitute 

3 ‘‘section 1901(f) of title 41’’; and 

4 (E) in subsection (h)(1), strike ‘‘The Walsh-Healey Act (41 

5 U.S.C. 35 et seq.)’’ and substitute ‘‘Chapter 65 of title 41’’. 

6 (13) In section 2304b— 

7 (A) in subsection (c), strike ‘‘section 18 of the Office of Federal 

8 Procurement Policy Act (41 U.S.C. 416)’’ and substitute ‘‘section 

9 1707 of title 41’’; and 

10 (B) in subsection (f)(3), strike ‘‘section 18 of the Office of Fed11 eral Procurement Policy Act (41 U.S.C. 416)’’ and substitute 

12 ‘‘section 1707 of title 41’’. 

13 (14) In section 2304c(a)(1), strike ‘‘section 18 of the Office of Fed14 eral Procurement Policy Act (41 U.S.C. 416)’’ and substitute ‘‘section 

15 1707 of title 41’’. 

16 (15) In section 2306a(h)(3), strike ‘‘section 4(12) of the Office of 

17 Federal Procurement Policy Act (41 U.S.C. 403(12))’’ and substitute 

18 ‘‘section 103 of title 41’’. 

19 (16) In section 2314, strike ‘‘Sections 3709 and 3735 of the Revised 

20 Statutes (41 U.S.C. 5 and 13)’’ and substitute ‘‘Sections 6101(b)–(d) 

21 and 6304 of title 41’’. 

22 (17) In section 2318— 

23 (A) in subsection (a)(1), strike ‘‘section 20(a) of the Office of 

24 Federal Procurement Policy Act (41 U.S.C. 418(a))’’ and sub25 stitute ‘‘section 1704(a) of title 41’’; and 

26 (B) in subsection (a)(2), strike ‘‘sections 20(b) and 20(c) of the 

27 Office of Federal Procurement Policy Act (41 U.S.C. 418(b), (c))’’ 

28 and substitute ‘‘section 1704(b) and (c) of title 41’’. 

29 (18) In section 2321(h), strike ‘‘the Contract Disputes Act of 1978 

30 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 69 of title 41’’. 

31 (19) In section 2324— 

32 (A) in subsection (d)(1), strike ‘‘section 6 of the Contract Dis33 putes Act of 1978 (41 U.S.C. 605)’’ and substitute ‘‘section 6903 

34 of title 41’’; 

35 (B) in subsection (d)(2), strike ‘‘section 7 of such Act (41 

36 U.S.C. 606)’’ and substitute ‘‘section 6904(a) of title 41’’; 

37 (C) in subsection (e)(1)(P), strike ‘‘section 39 of the Office of 

38 Federal Procurement Policy Act (41 U.S.C. 435)’’ and substitute 

39 ‘‘section 1127 of title 41’’; and 


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1 (D) in subsection (e)(2)(C), strike ‘‘(41 U.S.C. 10b–1)’’ and 

2 substitute ‘‘(as added by section 7002(2) of the Omnibus Trade 

3 and Competitiveness Act of 1988)’’. 

4 (20) In section 2343, strike ‘‘section 3741 of the Revised Statutes 

5 (41 U.S.C. 22)’’ and substitute ‘‘section 6306 of title 41’’. 

6 (21) In section 2375(b), strike ‘‘section 34 of the Office of Federal 

7 Procurement Policy Act (41 U.S.C. 430)’’ and substitute ‘‘section 1906 

8 of title 41’’. 

9 (22) In section 2376(1), strike ‘‘section 4 of the Office of Federal 

10 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘chapter 1 

11 of title 41’’. 

12 (23) In section 2384— 

13 (A) in subsection (b)(2), strike ‘‘section 4(12) of the Office of 

14 Federal Procurement Policy Act (41 U.S.C. 403(12)))’’ and sub15 stitute ‘‘section 103 of title 41)’’; and 

16 (B) in subsection (b)(3), strike ‘‘section 4(11) of the Office of 

17 Federal Procurement Policy Act (41 U.S.C. 403(11)))’’ and sub18 stitute ‘‘section 134 of title 41)’’. 

19 (24) In section 2393(d)— 

20 (A) strike ‘‘section 4(11) of the Office of Federal Procurement 

21 Policy Act (41 U.S.C. 403(11)))’’ and substitute ‘‘section 134 of 

22 title 41)’’; and 

23 (B) strike ‘‘section 4(12) of the Office of Federal Procurement 

24 Policy Act (41 U.S.C. 403(12)))’’ and substitute ‘‘section 103 of 

25 title 41)’’. 

26 (25) In section 2402— 

27 (A) in subsection (c), strike ‘‘section 4(11) of the Office of Fed28 eral Procurement Policy Act (41 U.S.C. 403(11)))’’ and substitute 

29 ‘‘section 134 of title 41)’’; and 

30 (B) in subsection (d)(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’’. 

33 (26) In section 2408— 

34 (A) in subsection (a)(4)(A), strike ‘‘section 4(11) of the Office 

35 of Federal Procurement Policy Act (41 U.S.C. 403(11)))’’ and 

36 substitute ‘‘section 134 of title 41)’’; and 

37 (B) in subsection (a)(4)(B), strike ‘‘section 4(12) of the Office 

38 of Federal Procurement Policy Act (41 U.S.C. 403(12)))’’ and 

39 substitute ‘‘section 103 of title 41)’’. 

40 (27) In section 2410(c), strike ‘‘section 4(11) of the Office of Fed41 eral Procurement Policy Act’’ and substitute ‘‘section 134 of title 41’’. 


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1 (28) In section 2410b(c), strike ‘‘section 4(12) of the Office of Fed2 eral Procurement Policy Act (41 U.S.C. 403(12)))’’ and substitute 

3 ‘‘section 103 of title 41)’’. 

4 (29) In section 2410d— 

5 (A) in subsection (b)(2)(A), strike ‘‘section 5(3) of the Javits6 Wagner-O’Day Act (41 U.S.C. 48b(3))’’ and substitute ‘‘section 

7 8501(8) of title 41’’; 

8 (B) in subsection (b)(2)(B), strike ‘‘handicapped, as defined in 

9 section 5(4) of such Act (41 U.S.C. 48b(4))’’ and substitute ‘‘dis10 abled, as defined in section 8501(7) of title 41’’; and 

11 (C) in subsection (b)(2)(C), strike ‘‘section 2(c) of such Act (41 

12 U.S.C. 47(c))’’ and substitute ‘‘section 8503(c) of title 41’’. 

13 (30) In section 2410g(d)(1), strike ‘‘section 4(12) of the Office of 

14 Federal Procurement Policy Act (41 U.S.C. 403(12)))’’ and substitute 

15 ‘‘section 103 of title 41)’’. 

16 (31) In section 2410i(b)(1), strike ‘‘section 4(11) of the Office of 

17 Federal Procurement Policy Act (41 U.S.C. 403(11)))’’ and substitute 

18 ‘‘section 134 of title 41)’’. 

19 (32) In section 2410m— 

20 (A) in subsection (a), before paragraph (1), strike ‘‘the Contract 

21 Disputes Act of 1978 (41 U.S.C. 601 et seq.)’’ and substitute 

22 ‘‘chapter 69 of title 41’’; 

23 (B) in subsection (a)(2), strike ‘‘section 7 of such Act (41 

24 U.S.C. 606)’’ and substitute ‘‘section 6904(a) of title 41’’; and 

25 (C) in subsection (b)(1)(A), strike ‘‘section 10(a) of the Con26 tract Disputes Act of 1978 (41 U.S.C. 609(a))’’ and substitute 

27 ‘‘section 6904(b) of title 41’’. 

28 (33) In section 2457(e), strike ‘‘section 2 of the Buy American Act 

29 (41 U.S.C. 10a)’’ and substitute ‘‘section 8302 of title 41’’. 

30 (34) In section 2461(e)(1), strike ‘‘section 2 of the Javits-Wagner31 O’Day Act (41 U.S.C. 47)’’ and substitute ‘‘section 8503 of title 41’’. 

32 (35) In section 2482(b)(1), strike ‘‘section 4(6) of the Office of Fed33 eral Procurement Policy Act (41 U.S.C. 403(6))’’ and substitute ‘‘sec34 tion 107 of title 41’’. 

35 (36) In the chapter analysis for subchapter V of chapter 148, in the 

36 item for section 2533, strike ‘‘the Buy American Act’’ and substitute 

37 ‘‘chapter 83 of title 41’’. 

38 (37) In section 2533— 

39 (A) in the section catchline, strike ‘‘the Buy American 

40 Act’’ and substitute ‘‘chapter 83 of title 41’’; and 


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1 (B) in subsection (a), strike ‘‘section 2 of the Buy American Act 

2 (41 U.S.C. 10a)’’ and substitute ‘‘section 8302 of title 41’’. 

3 (38) In section 2533a(i), strike ‘‘section 34 of the Office of Federal 

4 Procurement Policy Act (41 U.S.C. 430)’’ and substitute ‘‘section 1906 

5 of title 41’’. 

6 (39) In section 2534(g)(2), strike ‘‘section 33 of the Office of Fed7 eral Procurement Policy Act (41 U.S.C. 429)’’ and substitute ‘‘section 

8 1905 of title 41’’. 

9 (40) In section 2562(a)(1), strike ‘‘title III of the Federal Property 

10 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

11 substitute ‘‘part C of subtitle I of title 41’’. 

12 (41) In section 2576(a), strike ‘‘title III of the Federal Property and 

13 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub14 stitute ‘‘part C of subtitle I of title 41’’. 

15 (42) In section 2636(b)(3), strike ‘‘section 4(11) of the Office of 

16 Federal Procurement Policy Act (41 U.S.C. 403(11))’’ and substitute 

17 ‘‘section 134 of title 41’’. 

18 (43) In section 2667(f)(1), strike ‘‘Notwithstanding subsection (a)(3) 

19 or subtitle I of title 40 and title III of the Federal Property and Ad20 ministrative Services Act of 1949 (to the extent subtitle I and title III 

21 are inconsistent with this subsection)’’ and substitute ‘‘Notwithstanding 

22 subtitle I of title 40 and part C of subtitle I of title 41 (to the extent 

23 those provisions are inconsistent with this subsection) or subsection 

24 (a)(2) of this section’’. 

25 (44) In section 2676(a), strike ‘‘title III of the Federal Property and 

26 Administrative Services Act of 1949, as amended (41 U.S.C. 251 et 

27 seq.)’’ and substitute ‘‘part C of subtitle I of title 41’’. 

28 (45) In section 2691(b), strike ‘‘title III of the Federal Property and 

29 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub30 stitute ‘‘part C of subtitle I of title 41’’. 

31 (46) In section 2696(a), strike ‘‘title III of the Federal Property and 

32 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub33 stitute ‘‘part C of subtitle I of title 41’’. 

34 (47) In section 2701(i)(1), in the heading, strike ‘‘MILLER ACT’’ and 

35 substitute ‘‘SECTIONS 3131 AND 3133 OF TITLE 40’’. 

36 (48) In section 2836(g), strike ‘‘the Contract Disputes Act of 1978 

37 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 69 of title 41’’. 

38 (49) In section 2854a(d)(1), strike ‘‘title III of the Federal Property 

39 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

40 substitute ‘‘part C of subtitle I of title 41’’. 


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1 (50) In section 2878(d)(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 ‘‘part C of subtitle I of title 41’’. 

4 (51) In the chapter analysis for chapter 633, in the item for section 

5 7299, strike ‘‘Walsh-Healey Act’’ and substitute ‘‘chapter 65 of title 

6 41’’. 

7 (52) In section 7299— 

8 (A) in the heading, strike ‘‘Walsh-Healey Act’’ and substitute 

9 ‘‘chapter 65 of title 41’’; and 

10 (B) strike ‘‘the Walsh-Healey Act (41 U.S.C. 35 et seq.)’’ and 

11 substitute ‘‘chapter 65 of title 41’’. 

12 (53) In section 7305(d)— 

13 (A) strike ‘‘title III of the Federal Property and Administrative 

14 Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and substitute 

15 ‘‘part C of subtitle I of title 41’’; and 

16 (B) strike ‘‘under subtitle I of title 40 and such title III’’ and 

17 substitute ‘‘under those provisions’’. 

18 (54) In section 9444(b)(1), strike ‘‘title III of the Federal Property 

19 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

20 substitute ‘‘part C of subtitle I of title 41’’. 

21 (55) In section 9781(g), strike ‘‘title III of the Federal Property and 

22 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub23 stitute ‘‘part C of subtitle I of title 41’’. 

24 (c) TITLE 14.—Title 14, United States Code, is amended as follows: 

25 (1) In section 92(d), strike ‘‘title III of the Federal Property and 

26 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub27 stitute ‘‘part C of subtitle I of title 41’’. 

28 (2) In section 93(h), strike ‘‘title III of the Federal Property and 

29 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub30 stitute ‘‘part C of subtitle I of title 41’’. 

31 (3) In section 641(a), strike ‘‘title III of the Federal Property and 

32 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub33 stitute ‘‘part C of subtitle I of title 41’’. 

34 (4) In section 685(c)(1), strike ‘‘title III of the Federal Property and 

35 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub36 stitute ‘‘part C of subtitle I of title 41’’. 

37 (d) TITLE 18.—Title 18, United States Code, is amended as follows: 

38 (1) In section 3672, strike ‘‘section 3709 of the Revised Statutes of 

39 the United States’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 


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1 (2) In section 4124(c), strike ‘‘section 6(d)(4) of the Office of Fed2 eral Procurement Policy Act’’ and substitute ‘‘section 1122(a)(4) of 

3 title 41’’. 

4 (e) TITLE 23.—Title 23, United States Code, is amended as follows: 

5 (1) In section 107(a), strike ‘‘the Act of February 26, 1931, 46 Stat. 

6 1421’’ and substitute ‘‘sections 3114 to 3116 and 3118 of title 40’’. 

7 (2) In section 140— 

8 (A) in subsection (b), strike ‘‘section 3709 of the Revised Stat9 utes, as amended (41 U.S.C. 5),’’ and substitute ‘‘section 6101(b) 

10 to (d) of title 41’’; and 

11 (B) in subsection (c)— 

12 (i) strike ‘‘section 3709 of the Revised Statutes, as amend13 ed (41 U.S.C. 5),’’ and substitute ‘‘section 6101(b) to (d) of 

14 title 41’’; and 

15 (ii) strike ‘‘section 302(e) of the Federal Property and Ad16 ministrative Services Act of 1949 (41 U.S.C. 252(e))’’ and 

17 substitute ‘‘section 3106 of title 41’’. 

18 (3) In section 210(e), strike ‘‘the Act of February 26, 1931; 46 Stat. 

19 1421’’ and substitute ‘‘sections 3114 to 3116 and 3118 of title 40’’. 

20 (4) In section 502(b)(5), strike ‘‘Section 3709 of the Revised Stat21 utes (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

22 (f) THE INTERNAL REVENUE CODE OF 1986.—Section 7608(c)(1) of the 

23 Internal Revenue Code of 1986 (26 U.S.C. 7608(c)(1)) is amended— 

24 (1) in subparagraph (A)(i)(II), by striking ‘‘sections 11(a) and 22’’ 

25 and substituting ‘‘sections 6301(a) and (b)(1)–(3) and 6306’’; 

26 (2) in subparagraph (A)(i)(III), by striking ‘‘section 255’’ and sub27 stituting ‘‘chapter 45’’; and 

28 (3) in subparagraph (A)(i)(V), by striking ‘‘section 254(a) and (c)’’ 

29 and substituting ‘‘section 3901’’. 

30 (g) TITLE 28.—Title 28, United States Code, is amended as follows: 

31 (1) In the last sentence of section 524(c)(1), strike ‘‘section 3709 

32 of the Revised Statutes of the United States (41 U.S.C. 5), title III 

33 of the Federal Property and Administrative Services Act of 1949 (41 

34 U.S.C. 251 and following)’’ and substitute ‘‘part C of subtitle I of title 

35 41, section 6101(b) to (d) of title 41’’. 

36 (2) In section 604(a)(10)(C), strike ‘‘section 3709 of the Revised 

37 Statutes of the United States (41 U.S.C. 5)’’ and substitute ‘‘section 

38 6101(b) to (d) of title 41’’. 

39 (3) In section 624(3), strike ‘‘section 3709 of the Revised Statutes, 

40 as amended (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of 

41 title 41’’. 


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1 (4) In section 753(g), strike ‘‘section 3709 of the Revised Statutes 

2 of the United States, as amended (41 U.S.C. 5)’’ and substitute ‘‘sec3 tion 6101(b) to (d) of title 41’’. 

4 (5) In section 1295— 

5 (A) in subsection (a)(10), strike ‘‘section 8(g)(1) of the Con6 tract Disputes Act of 1978 (41 U.S.C. 607(g)(1))’’ and substitute 

7 ‘‘section 6907(a)(1) of title 41’’; 

8 (B) in subsection (b), strike ‘‘section 10(b) of the Contract Dis9 putes Act of 1978 (41 U.S.C. 609(b))’’ and substitute ‘‘section 

10 6907(b) of title 41’’; and 

11 (C) in subsection (c), strike ‘‘section 10(b) of the Contract Dis12 putes Act of 1978’’ and substitute ‘‘section 6907(b) of title 41’’. 

13 (6) In section 1346(a)(2), strike ‘‘sections 8(g)(1) and 10(a)(1) of 

14 the Contract Disputes Act of 1978’’ and substitute ‘‘sections 

15 6904(b)(1) and 6907(a)(1) of title 41’’. 

16 (7) In the chapter analysis for chapter 91, in item 1499, strike 

17 ‘‘Contract Work Hours and Safety Standards Act’’ and substitute 

18 ‘‘chapter 37 of title 40’’. 

19 (8) In section 1491(a)(2), strike ‘‘section 10(a)(1) of the Contract 

20 Disputes Act of 1978’’ and substitute ‘‘section 6904(b)(1) of title 41’’. 

21 (9) In section 1499, in the section catchline, strike ‘‘Contract 

22 Work Hours and Safety Standards Act’’ and substitute 

23 ‘‘chapter 37 of title 40’’. 

24 (10) In section 2401(a), strike ‘‘the Contract Disputes Act of 1978’’ 

25 and substitute ‘‘chapter 69 of title 41’’. 

26 (11) In section 2412— 

27 (A) in subsection (d)(2)(E), strike ‘‘the Contract Disputes Act 

28 of 1978’’ and substitute ‘‘chapter 69 of title 41’’; and 

29 (B) in subsection (d)(3), strike ‘‘the Contract Disputes Act of 

30 1978’’ and substitute ‘‘chapter 69 of title 41’’. 

31 (12) In section 2414, strike ‘‘the Contract Disputes Act of 1978’’ 

32 and substitute ‘‘chapter 69 of title 41’’. 

33 (13) In section 2517(a), strike ‘‘the Contract Disputes Act of 1978’’ 

34 and substitute ‘‘chapter 69 of title 41’’. 

35 (h) TITLE 31.—Title 31, United States Code, is amended as follows: 

36 (1) In section 506, strike ‘‘section 5(a) of the Office of Federal Pro37 curement Policy Act (41 U.S.C. 404(a))’’ and substitute ‘‘section 

38 1101(a) of title 41’’. 

39 (2) In section 731(i)(7), strike ‘‘section 27 of the Office of Federal 

40 Procurement Policy Act (41 U.S.C. 423)’’ and substitute ‘‘chapter 21 

41 of title 41’’. 


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1 (3) In section 781(c)(1), 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) Section 1344(g)(2)(A) is amended to read as follows: 

4 ‘‘(A) a department— 

5 ‘‘(i) including independent establishments, other agencies, 

6 and wholly owned Government corporations; but 

7 ‘‘(ii) not including the Senate, House of Representatives, or 

8 Architect of the Capitol, or the officers or employees there9 of;’’. 

10 (5) In section 3567, strike ‘‘section 4(1) of the Office of Federal 

11 Procurement Policy Act (41 U.S.C. 403(1))’’ and substitute ‘‘section 

12 133 of title 41’’. 

13 (6) In section 3718(b)(1)(A), strike ‘‘title III of the Federal Prop14 erty and Administrative Services Act of 1949 (41 U.S.C. 251 and fol15 lowing)’’ and substitute ‘‘part C of subtitle I of title 41’’. 

16 (7) In section 3902(a), strike ‘‘section 12 of the Contract Disputes 

17 Act of 1978 (41 U.S.C. 611)’’ and substitute ‘‘section 6909(a)(1) and 

18 (b) of title 41’’. 

19 (8) In section 3907— 

20 (A) in subsection (a), strike ‘‘section 6 of the Contract Disputes 

21 Act of 1978 (41 U.S.C. 605)’’ and substitute ‘‘section 6903 of 

22 title 41’’; 

23 (B) in subsection (b)(1)(A), strike ‘‘the Contract Disputes Act 

24 of 1978 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 69 of 

25 title 41’’; 

26 (C) in subsection (b)(2)— 

27 (i) strike ‘‘section 12 of the Contract Disputes Act of 1978 

28 (41 U.S.C. 611)’’ and substitute ‘‘section 6909(a)(1) and (b) 

29 of title 41’’; and 

30 (ii) in the second sentence, strike ‘‘section 12’’ and sub31 stitute ‘‘section 6909(a)(1) and (b)’’; and 

32 (D) in subsection (c), strike ‘‘the Contract Disputes Act of 1978 

33 (41 U.S.C. 601 et seq.)’’ and substitute ‘‘chapter 69 of title 41’’. 

34 (9) In section 6202(c)(2), strike ‘‘section 6(d)(5) of the Office of 

35 Federal Procurement Policy Act (41 U.S.C. 405(d)(5))’’ and substitute 

36 ‘‘section 1122(a)(5) of title 41’’. 

37 (10) In section 9703(b)(3), as added by section 638(b)(1) of the Act 

38 of October 6, 1992 (Public Law 102–393, 106 Stat. 1779), strike ‘‘sec39 tion 3709 of the Revised Statutes of the United States (41 U.S.C. 5), 

40 title III of the Federal Property and Administrative Services Act of 


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1 1949 (41 U.S.C. 251 et seq.)’’ and substitute ‘‘part C of subtitle I of 

2 title 41, section 6101(b) to (d) of title 41’’. 

3 (i) TITLE 35.—Title 35, United States Code, is amended as follows: 

4 (1) In section 2(b)(4)(A), strike ‘‘title III of the Federal Property 

5 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

6 substitute ‘‘part C of subtitle I of title 41’’. 

7 (2) In section 203(b), strike ‘‘the Contract Disputes Act (41 U.S.C. 

8 § 601 et seq.)’’ and substitute ‘‘chapter 69 of title 41’’. 

9 (j) TITLE 38.—Title 38, United States Code, is amended as follows: 

10 (1) In section 1720(c)(2), strike ‘‘section 2(b)(1) of the Service Con11 tract Act of 1965 (41 U.S.C. 351(b)(1))’’ and substitute ‘‘section 

12 6704(a) of title 41’’. 

13 (2) In section 1966(a), strike ‘‘section 3709 of the Revised Statutes, 

14 as amended (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of 

15 title 41’’. 

16 (3) In section 3720(b), strike ‘‘title III of the Federal Property and 

17 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub18 stitute ‘‘part C of subtitle I of title 41’’. 

19 (4) In section 7317(f), strike ‘‘section 3709 of the Revised Statutes 

20 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

21 (5) In section 7802(f), strike ‘‘section 3709 of the Revised Statutes 

22 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

23 (6) In section 8122— 

24 (A) in subsection (a)(1), strike ‘‘section 3709 of the Revised 

25 Statutes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of 

26 title 41’’; and 

27 (B) in subsection (c)— 

28 (i) strike ‘‘(41 U.S.C. 252(c))’’; and 

29 (ii) strike ‘‘section 304 of that Act (41 U.S.C. 254)’’ and 

30 substitute ‘‘sections 3901 and 3905 of title 41’’. 

31 (7) In section 8153(a)— 

32 (A) in paragraph (3)(B)(ii), strike ‘‘section 22 of the Office of 

33 Federal Procurement Policy Act (41 U.S.C. 418b)’’ and substitute 

34 ‘‘section 1706 of title 41’’; and 

35 (B) in paragraph (3)(D), strike ‘‘section 303(f) of the Federal 

36 Property and Administrative Services Act of 1949 (41 U.S.C. 

37 253(f))’’ and substitute ‘‘section 3303(d) of title 41’’. 

38 (8) In section 8201(e), strike ‘‘section 3709 of the Revised Statutes 

39 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

40 (k) TITLE 39.—Section 410(b) of title 39, United States Code, is amend41 ed by striking paragraph (5) and substituting— 


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1 ‘‘(5) chapters 65 and 67 of title 41;’’. 

2 (l) TITLE 40.—Title 40, United States Code, is amended as follows: 

3 (1) In the chapter analysis for chapter 1, in item 111, strike ‘‘Fed4 eral Property and Administrative Services Act of 1949’’ and substitute 

5 ‘‘part C of subtitle I of title 41’’. 

6 (2) In section 102, before paragraph (1), strike ‘‘title III of the Fed7 eral Property and Administrative Services Act of 1949 (41 U.S.C. 251 

8 et seq.)’’ and substitute ‘‘part C of subtitle I of title 41’’. 

9 (3) In section 111— 

10 (A) in the section catchline, strike ‘‘Federal Property and 

11 Administrative Services Act of 1949’’ and substitute 

12 ‘‘part C of subtitle I of title 41’’; and 

13 (B) before paragraph (1), strike ‘‘title III of the Federal Prop14 erty and Administrative Services Act of 1949 (41 U.S.C. 251 et 

15 seq.)’’ and substitute ‘‘part C of subtitle I of title 41’’. 

16 (4) In section 113(b)— 

17 (A) in the heading, strike ‘‘THE OFFICE OF FEDERAL PRO18 CUREMENT POLICY ACT’’ and substitute ‘‘PART B OF SUBTITLE

19 I OF TITLE 41’’; and 

20 (B) strike ‘‘the Office of Federal Procurement Policy Act (41 

21 U.S.C. 401 et seq.)’’ and substitute ‘‘part B of subtitle I of title 

22 41’’. 

23 (5) In section 311— 

24 (A) 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 ‘‘part C of subtitle I of title 41’’; and 

27 (B) in subsection (b), strike ‘‘title III of the Federal Property 

28 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

29 and substitute ‘‘part C of subtitle I of title 41’’. 

30 (6) In section 501(b)(2)(B), strike ‘‘the Office of Federal Procure31 ment Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘part B of 

32 subtitle I of title 41’’. 

33 (7) In section 502— 

34 (A) in subsection (b)(1)(A)(i), strike ‘‘section 5(3) of the Javits35 Wagner-O’Day Act (41 U.S.C. 48b(3))’’ and substitute ‘‘section 

36 8501(8) of title 41’’; 

37 (B) in subsection (b)(1)(A)(ii), strike ‘‘handicapped (as defined 

38 in section 5(4) of the Javits-Wagner-O’Day Act (41 U.S.C. 

39 48b(4)))’’ and substitute ‘‘disabled (as defined in section 8501(7) 

40 of title 41)’’; 


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1 (C) in subsection (b)(1)(B), strike ‘‘the Javits-Wagner-O’Day 

2 Act (41 U.S.C. 46 et seq.)’’ and substitute ‘‘chapter 85 of title 

3 41’’; and 

4 (D) in subsection (b)(2), strike ‘‘section 2 of the Javits-Wagner5 O’Day Act (41 U.S.C. 47)’’ and substitute ‘‘section 8503 of title 

6 41’’. 

7 (8) In section 503(b)— 

8 (A) in paragraph (1), strike ‘‘the Office of Federal Procurement 

9 Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘part B of sub10 title I of title 41’’; and 

11 (B) in paragraph (3)— 

12 (i) in the heading, strike ‘‘SECTION 3709 OF REVISED STAT13 UTES’’ and substitute ‘‘SECTION 6101(b) TO (d) OF TITLE 41’’; 

14 and 

15 (ii) strike ‘‘Section 3709 of the Revised Statutes (41 

16 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 

17 41’’. 

18 (9) In section 506(a)(1)(D), strike ‘‘the Office of Federal Procure19 ment Policy Act (41 U.S.C. 401 et seq.)’’ and substitute ‘‘part B of 

20 subtitle I of title 41’’. 

21 (10) In section 545(f), strike ‘‘Section 3709 of the Revised Statutes 

22 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b)–(d) of title 41’’. 

23 (11) In section 593(a)(2), strike ‘‘the Javits-Wagner-O’Day Act (41 

24 U.S.C. 46 et seq.)’’ and substitute ‘‘chapter 85 of title 41’’. 

25 (12) In section 1305, strike ‘‘title III of the Federal Property and 

26 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub27 stitute ‘‘part C of subtitle I of title 41’’. 

28 (13) In section 1308, strike ‘‘title III of the Federal Property and 

29 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub30 stitute ‘‘part C of subtitle I of title 41’’. 

31 (14) In section 3148, strike ‘‘section 3709 of the Revised Statutes 

32 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

33 (15) In section 3304(d)(2), strike ‘‘title III of the Federal Property 

34 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and 

35 substitute ‘‘part C of subtitle I of title 41’’. 

36 (16) In section 3305(a)— 

37 (A) in paragraph (1), strike ‘‘title III of the Federal Property 

38 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

39 and substitute ‘‘part C of subtitle I of title 41’’; and 


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1 (B) in paragraph (2), strike ‘‘title III of the Federal Property 

2 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

3 and substitute ‘‘part C of subtitle I of title 41’’. 

4 (17) In section 3308(a), strike ‘‘section 3709 of the Revised Statutes 

5 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

6 (18) In section 3310(2), strike ‘‘section 303 of the Federal Property 

7 and Administrative Services Act of 1949 (41 U.S.C. 253)’’ and sub8 stitute ‘‘sections 3105 and 3301 to 3304 of title 41’’. 

9 (19) In section 3701(b)(3)(A)(ii), strike ‘‘the Walsh-Healey Act (41 

10 U.S.C. 35 et seq.)’’ and substitute ‘‘chapter 65 of title 41’’. 

11 (20) In section 3704(b)(1), strike ‘‘sections 4 and 5 of the Walsh12 Healey Act (41 U.S.C. 38, 39)’’ and substitute ‘‘sections 6506 and 

13 6507 of title 41’’. 

14 (21) In section 3707, strike ‘‘section 4 of the Office of Federal Pro15 curement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 103 of 

16 title 41’’. 

17 (22) In section 6111(b)(2)(D), strike ‘‘section 3709 of the Revised 

18 Statutes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 

19 41’’. 

20 (23) In section 8711(d), strike ‘‘section 3709 of the Revised Statutes 

21 (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 41’’. 

22 (24) In section 11101— 

23 (A) in paragraph (1), strike ‘‘section 4 of the Office of Federal 

24 Procurement Policy Act (41 U.S.C. 403)’’ and substitute ‘‘section 

25 103 of title 41’’; and 

26 (B) in paragraph (2), strike ‘‘section 4 of the Act (41 U.S.C. 

27 403)’’ and substitute ‘‘section 133 of title 41’’. 

28 (m) TITLE 44.—Title 44, United States Code, is amended as follows: 

29 (1) In the chapter analysis for chapter 3, in the item for section 311, 

30 strike ‘‘the Federal Property and Administrative Services Act’’ and 

31 substitute ‘‘subtitle I of title 40 and part C of subtitle I of title 41’’. 

32 (2) In section 311— 

33 (A) in the section catchline, strike ‘‘the Federal Property 

34 and Administrative Services Act’’ and substitute ‘‘sub35 title I of title 40 and part C of subtitle I of title 41’’; 

36 (B) in subsection (a), strike ‘‘title III of the Federal Property 

37 and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ 

38 and substitute ‘‘part C of subtitle I of title 41’’; and 

39 (C) in subsection (c), strike ‘‘section 3709 of the Revised Stat40 utes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 

41 41’’. 


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1 (n) TITLE 49.—Title 49, United States Code, is amended as follows: 

2 (1) In section 103(e), strike ‘‘title III of the Federal Property and 

3 Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)’’ and sub4 stitute ‘‘part C of subtitle I of title 41’’. 

5 (2) In section 1113(b)(1)(B) strike ‘‘section 3709 of the Revised 

6 Statutes (41 U.S.C. 5)’’ and substitute ‘‘section 6101(b) to (d) of title 

7 41’’. 

8 (3) In section 5334(j)(2), strike ‘‘Section 3709 of the Revised Stat9 utes (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

10 (4) In section 10721, strike ‘‘Section 3709 of the Revised Statutes 

11 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

12 (5) In section 13712, strike ‘‘Section 3709 of the Revised Statutes 

13 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

14 (6) In section 15504, strike ‘‘Section 3709 of the Revised Statutes 

15 (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

16 (7) In section 40110— 

17 (A) in subsection (d)(2)(A), strike ‘‘Title III of the Federal 

18 Property and Administrative Services Act of 1949 (41 U.S.C. 

19 252–266)’’ and substitute ‘‘Part C of subtitle I of title 41’’; 

20 (B) in subsection (d)(2)(B), strike ‘‘The Office of Federal Pro21 curement Policy Act (41 U.S.C. 401 et seq.)’’ and substitute 

22 ‘‘Part B of subtitle I of title 41’’; 

23 (C) in subsection (d)(2)(C), strike ‘‘, except for section 315 (41 

24 U.S.C. 265). For the purpose of applying section 315 of that Act 

25 to the system,’’ and substitute ‘‘. However, section 4705 of title 

26 41 shall apply to the new acquisition management system devel27 oped and implemented pursuant to paragraph (1). For the purpose 

28 of applying section 4705 of title 41 to the system,’’; and 

29 (D) in subsection (d)(3)— 

30 (i) in the heading, strike ‘‘THE OFFICE OF FEDERAL PRO31 CUREMENT POLICY ACT’’ and substitute ‘‘PART B OF SUB32 TITLE I OF TITLE 41’’; 

33 (ii) before subparagraph (A), strike ‘‘section 27 of the Of34 fice of Federal Procurement Policy Act (41 U.S.C. 423)’’ and 

35 substitute ‘‘chapter 21 of title 41’’; and 

36 (iii) in subparagraph (A), strike ‘‘Subsections (f) and (g)’’ 

37 and substitute ‘‘Sections 2101 and 2106 of title 41’’. 

38 (8) In section 40118(f)(2), strike ‘‘section 4(12) of the Office of 

39 Federal Procurement Policy Act (41 U.S.C. 403(12))’’ and substitute 

40 ‘‘section 103 of title 41’’. 


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1 (9) In section 47305(d), strike ‘‘Section 3709 of the Revised Stat2 utes (41 U.S.C. 5)’’ and substitute ‘‘Section 6101(b) to (d) of title 41’’. 

3 SEC. 6. TECHNICAL AMENDMENTS. 

4 (a) SECTIONS 6901, 6905, 6907, AND 6908.—Effective January 6, 2007, 

5 or the date of enactment of this Act, whichever is later, title 41, United 

6 States Code, is amended as follows: 

7 (1) Section 6901 is amended to read as follows: 

8 ‘‘§ 6901. Definitions 

9 ‘‘In this chapter: 

10 ‘‘(1) ADMINISTRATOR.—The term ‘Administrator’ means the Admin11 istrator for Federal Procurement Policy appointed pursuant to section 

12 1102 of this title. 

13 ‘‘(2) AGENCY BOARD OR AGENCY BOARD OF CONTRACT APPEALS.— 

14 The term ‘agency board’ or ‘agency board of contract appeals’ means— 

15 ‘‘(A) the Armed Services Board; 

16 ‘‘(B) the Civilian Board; 

17 ‘‘(C) the board of contract appeals of the Tennessee Valley Au18 thority; or 

19 ‘‘(D) the Postal Service Contract Board of Appeals established 

20 under section 6905(d)(1) of this title. 

21 ‘‘(3) AGENCY HEAD.—The term ‘agency head’ means the head and 

22 any assistant head of an executive agency. The term may include the 

23 chief official of a principal division of an executive agency if the head 

24 of the executive agency so designates that chief official. 

25 ‘‘(4) ARMED SERVICES BOARD.—The term ‘Armed Services Board’ 

26 means the Armed Services Board of Contract Appeals established 

27 under section 6905(a)(1) of this title; 

28 ‘‘(5) CIVILIAN BOARD.—The term ‘Civilian Board’ means the Civil29 ian Board of Contract Appeals established under section 6905(b)(1) of 

30 this title. 

31 ‘‘(6) CONTRACTING OFFICER.—The term ‘contracting officer’— 

32 ‘‘(A) means an individual who, by appointment in accordance 

33 with applicable regulations, has the authority to make and admin34 ister contracts and to make determinations and findings with re35 spect to contracts; and 

36 ‘‘(B) includes an authorized representative of the contracting of37 ficer, acting within the limits of the representative’s authority. 

38 ‘‘(7) CONTRACTOR.—The term ‘contractor’ means a party to a Fed39 eral Government contract other than the Federal Government. 

40 ‘‘(8) EXECUTIVE AGENCY.—The term ‘executive agency’ means— 


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1 ‘‘(A) an executive department as defined in section 101 of title 

2 5; 

3 ‘‘(B) a military department as defined in section 102 of title 5; 

4 ‘‘(C) an independent establishment as defined in section 104 of 

5 title 5, except that the term does not include the Government Ac6 countability Office; and 

7 ‘‘(D) a wholly owned Government corporation as defined in sec8 tion 9101(3) of title 31. 

9 ‘‘(9) MISREPRESENTATION OF FACT.—The term ‘misrepresentation 

10 of fact’ means a false statement of substantive fact, or conduct that 

11 leads to a belief of a substantive fact material to proper understanding 

12 of the matter in hand, made with intent to deceive or mislead.’’. 

13 (2) Section 6905 is amended to read as follows: 

14 § ‘‘6905. Agency boards 

15 ‘‘(a) ARMED SERVICES BOARD.— 

16 ‘‘(1) ESTABLISHMENT.—An Armed Services Board of Contract Ap17 peals may be established within the Department of Defense when the 

18 Secretary of Defense, after consultation with the Administrator, deter19 mines from a workload study that the volume of contract claims justi20 fies the establishment of a full-time agency board of at least 3 members 

21 who shall have no other inconsistent duties. Workload studies will be 

22 updated at least once every 3 years and submitted to the Adminis23 trator. 

24 ‘‘(2) APPOINTMENT OF MEMBERS AND COMPENSATION.—Members of 

25 the Armed Services Board shall be selected and appointed in the same 

26 manner as administrative law judges appointed pursuant to section 

27 3105 of title 5, with an additional requirement that members must 

28 have had at least 5 years of experience in public contract law. The Sec29 retary of Defense shall designate the chairman and vice chairman of 

30 the Armed Services Board from among the appointed members. Com31 pensation for the chairman, vice chairman, and other members shall be 

32 determined under section 5372a of title 5. 

33 ‘‘(b) CIVILIAN BOARD.— 

34 ‘‘(1) ESTABLISHMENT.—There is established in the General Services 

35 Administration the Civilian Board of Contract Appeals. 

36 ‘‘(2) MEMBERSHIP.— 

37 ‘‘(A) ELIGIBILITY.—The Civilian Board consists of members ap38 pointed by the Administrator of General Services (in consultation 

39 with the Administrator) from a register of applicants maintained 

40 by the Administrator of General Services, in accordance with rules 

41 issued by the Administrator of General Services (in consultation 


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1 with the Administrator) for establishing and maintaining a reg2 ister of eligible applicants and selecting Civilian Board members. 

3 The Administrator of General Services shall appoint a member 

4 without regard to political affiliation and solely on the basis of the 

5 professional qualifications required to perform the duties and re6 sponsibilities of a Civilian Board member. 

7 ‘‘(B) APPOINTMENT OF MEMBERS AND COMPENSATION.—Mem8 bers of the Civilian Board shall be selected and appointed to serve 

9 in the same manner as administrative law judges appointed pursu10 ant to section 3105 of title 5, with an additional requirement that 

11 members must have had at least 5 years experience in public con12 tract law. Compensation for the members shall be determined 

13 under section 5372a of title 5. 

14 ‘‘(C) INDIVIDUALS WHO SHALL SERVE AS BOARD MEMBERS.— 

15 Notwithstanding subparagraph (B), any full-time member of an 

16 agency board of contract appeals, other than the Armed Services 

17 Board, the Postal Service Board of Contract Appeals, and the 

18 board of contract appeals of the Tennessee Valley Authority, serv19 ing in that capacity on January 5, 2007, shall serve as Civilian 

20 Board members. 

21 ‘‘(3) REMOVAL.—Members of the Civilian Board are subject to re22 moval in the same manner as administrative law judges, as provided 

23 in section 7521 of title 5. 

24 ‘‘(4) FUNCTIONS.— 

25 ‘‘(A) IN GENERAL.—The Civilian Board has jurisdiction as pro26 vided by subsection (e)(1)(B). 

27 ‘‘(B) ADDITIONAL JURISDICTION.—With the concurrence of the 

28 Federal agencies affected, the Civilian Board may assume— 

29 ‘‘(i) jurisdiction over any additional category of laws or dis30 putes over which an agency board of contract appeals estab31 lished pursuant to this section or section 8 of the Contract 

32 Disputes Act exercised jurisdiction before January 6, 2007; 

33 and 

34 ‘‘(ii) any other function the agency board performed before 

35 January 6, 2007, on behalf of such agencies. 

36 ‘‘(c) TENNESSEE VALLEY AUTHORITY BOARD.— 

37 ‘‘(1) ESTABLISHMENT.—The Board of Directors of the Tennessee 

38 Valley Authority may establish a board of contract appeals of the Ten39 nessee Valley Authority of an indeterminate number of members. 

40 ‘‘(2) APPOINTMENT OF MEMBERS AND COMPENSATION.—The Board 

41 of Directors of the Tennessee Valley Authority shall establish criteria 


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1 for the appointment of members to the agency board established under 

2 paragraph (1), and shall designate a chairman of the agency board. 

3 The chairman and other members of the agency board shall receive 

4 compensation, at the daily equivalent of the rates determined under 

5 section 5372a of title 5, for each day they are engaged in the actual 

6 performance of their duties as members of the agency board. 

7 ‘‘(d) POSTAL SERVICE BOARD.— 

8 ‘‘(1) ESTABLISHMENT.—There is established an agency board of 

9 contract appeals known as the Postal Service Board of Contract Ap10 peals. 

11 ‘‘(2) APPOINTMENT AND SERVICE OF MEMBERS.—The Postal Service 

12 Board of Contract Appeals consists of judges appointed by the Post13 master General. The judges shall meet the qualifications of and serve 

14 in the same manner as members of the Civilian Board. 

15 ‘‘(3) APPLICATION.—This chapter applies to contract disputes before 

16 the Postal Service Board of Contract Appeals in the same manner as 

17 it applies to contract disputes before the Civilian Board. 

18 ‘‘(e) JURISDICTION.— 

19 ‘‘(1) IN GENERAL.— 

20 ‘‘(A) ARMED SERVICES BOARD.—The Armed Services Board has 

21 jurisdiction to decide any appeal from a decision of a contracting 

22 officer of the Department of Defense, the Department of the 

23 Army, the Department of the Navy, the Department of the Air 

24 Force, or the National Aeronautics and Space Administration rel25 ative to a contract made by that department or agency. 

26 ‘‘(B) CIVILIAN BOARD.—The Civilian Board has jurisdiction to 

27 decide any appeal from a decision of a contracting officer of any 

28 executive agency (other than the Department of Defense, the De29 partment of the Army, the Department of the Navy, the Depart30 ment of the Air Force, the National Aeronautics and Space Ad31 ministration, the United States Postal Service, the Postal Rate 

32 Commission, or the Tennessee Valley Authority) relative to a con33 tract made by that agency. 

34 ‘‘(C) POSTAL SERVICE BOARD.–The Postal Service Board of 

35 Contract Appeals has jurisdiction to decide any appeal from a de36 cision of a contracting officer of the United States Postal Service 

37 or the Postal Rate Commission relative to a contract made by ei38 ther agency. 

39 ‘‘(D) OTHER AGENCY BOARDS.—Each other agency board has 

40 jurisdiction to decide any appeal from a decision of a contracting 

41 officer relative to a contract made by its agency. 


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1 ‘‘(2) RELIEF.—In exercising this jurisdiction, an agency board may 

2 grant any relief that would be available to a litigant asserting a con3 tract claim in the United States Court of Federal Claims. 

4 ‘‘(f) SUBPOENA, DISCOVERY, AND DEPOSITION.—A member of an agency 

5 board of contract appeals may administer oaths to witnesses, authorize 

6 depositions and discovery proceedings, and require by subpoena the attend7 ance of witnesses, and production of books and papers, for the taking of 

8 testimony or evidence by deposition or in the hearing of an appeal by the 

9 agency board. In case of contumacy or refusal to obey a subpoena by a per10 son who resides, is found, or transacts business within the jurisdiction of 

11 a United States district court, the court, upon application of the agency 

12 board through the Attorney General, or upon application by the board of 

13 contract appeals of the Tennessee Valley Authority, shall have jurisdiction 

14 to issue the person an order requiring the person to appear before the agen15 cy board or a member of the agency board, to produce evidence or to give 

16 testimony, or both. Any failure of the person to obey the order of the court 

17 may be punished by the court as contempt of court. 

18 ‘‘(g) DECISIONS.—An agency board shall— 

19 ‘‘(1) to the fullest extent practicable provide informal, expeditious, 

20 and inexpensive resolution of disputes; 

21 ‘‘(2) issue a decision in writing or take other appropriate action on 

22 each appeal submitted; and 

23 ‘‘(3) mail or otherwise furnish a copy of the decision to the con24 tractor and the contracting officer.’’. 

25 (3) In section 6907(a)(2) before subparagraph (A), strike ‘‘agency 

26 board’’ and substitute ‘‘board of contract appeals’’. 

27 (4) In section 6908(d)(2), strike ‘‘agency board’’ and substitute 

28 ‘‘board of contract appeals’’. 

29 (b) CONTINGENT AMENDMENTS.— 

30 (1) IF ENACTED BEFORE JANUARY 6, 2007.—If this Act is enacted 

31 before January 6, 2007, section 847 of National Defense Authorization 

32 Act for Fiscal Year 2006 (Public Law 109–163, 119 Stat. 3391) is 

33 amended as follows: 

34 (A) Subsection (a) is repealed. 

35 (B) Subsection (f)(1) is amended by— 

36 (i) striking ‘‘ ‘of 1978’ ’’ and inserting ‘‘ ‘of title 41’ ’’; and 

37 (ii) striking ‘‘section 42 of the Office of Federal Procure38 ment Policy Act’’ and inserting ‘‘section 6905(b)(2) of title 

39 41’’. 

40 (2) IF ENACTED ON OR AFTER JANUARY 6, 2007.—If this Act is en41 acted on or after January 6, 2007— 


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1 (A) section 5372a(a)(1) of title 5, United States Code, is 

2 amended by striking ‘‘section 42 of the Office of Federal Procure3 ment Policy Act’’ and inserting ‘‘section 6905(b)(2) of title 41’’; 

4 and 

5 (B) section 42 of the Office of Federal Procurement Policy Act 

6 (41 U.S.C. 438) is repealed. 

7 SEC. 7. TRANSITIONAL AND SAVINGS PROVISIONS. 

8 (a) CUTOFF DATE.—This Act replaces certain provisions of law enacted 

9 on or before March 31, 2006. If a law enacted after that date amends or 

10 repeals a provision replaced by this Act, that law is deemed to amend or 

11 repeal, as the case may be, the corresponding provision enacted by this Act. 

12 If a law enacted after that date is otherwise inconsistent with this Act, it 

13 supersedes this Act to the extent of the inconsistency. 

14 (b) ORIGINAL DATE OF ENACTMENT UNCHANGED.—For purposes of de15 termining whether one provision of law supersedes another based on enact16 ment later in time, the date of enactment of a provision enacted by this Act 

17 is deemed to be the date of enactment of the provision it replaced. 

18 (c) REFERENCES TO PROVISIONS REPLACED.—A reference to a provision 

19 of law replaced by this Act, including a reference in a regulation, order, or 

20 other law, is deemed to refer to the corresponding provision enacted by this 

21 Act. 

22 (d) REGULATIONS, ORDERS, AND OTHER ADMINISTRATIVE ACTIONS.—A 

23 regulation, order, or other administrative action in effect under a provision 

24 of law replaced by this Act continues in effect under the corresponding pro25 vision enacted by this Act. 

26 (e) ACTIONS TAKEN AND OFFENSES COMMITTED.—An action taken or 

27 an offense committed under a provision of law replaced by this Act is 

28 deemed to have been taken or committed under the corresponding provision 

29 enacted by this Act. 

30 SEC. 8. REPEALS. 

31 (a) INFERENCE OF REPEAL.—The repeal of a law by this Act may not 

32 be construed as a legislative inference that the provision was or was not in 

33 effect before its repeal. 

34 (b) REPEALER SCHEDULE.—The laws specified in the following schedule 

35 are repealed, except for rights and duties that matured, penalties that were 

36 incurred, and proceedings that were begun before the date of enactment of 

37 this Act. 


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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 ........................


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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 ........................


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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 


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........................................ 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 3302 ........................................ 303(c)–(f) ....................................................................................................................... 63 395 ......................................... 253 3303 ........................................ 303(g) ............................................................................................................................. 63 395 ......................................... 253 3304 ........................................ 303(h) ............................................................................................................................. ........ ................................................ 253 3301 ........................................ 303(i) .............................................................................................................................. ........ ................................................ 253 3105 ........................................ 303A ............................................................................................................................... ........ ................................................ 253a 3305 ........................................ 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 3307 ........................................ 303B(k), (l) .................................................................................................................... ........ ................................................ 253b 3708 ........................................ 303B(m) ......................................................................................................................... ........ ................................................ 253b 4702 ........................................ 303C ............................................................................................................................... ........ ................................................ 253c 3310 ........................................ 303D ............................................................................................................................... ........ ................................................ 253d 4703 ........................................ 303F ............................................................................................................................... ........ ................................................ 253f 3309 ........................................ 303G ............................................................................................................................... ........ ................................................ 253g 4704 ........................................ 303H ............................................................................................................................... ........ ................................................ 253h 4103 ........................................ 303I ................................................................................................................................ ........ ................................................ 253i 4105 ........................................ 303J ................................................................................................................................ ........ ................................................ 253j 4106 ........................................ 303K ............................................................................................................................... ........ ................................................ 253k 4101 ........................................ 303L ............................................................................................................................... ........ ................................................ 253l 3902 ........................................ 303M ............................................................................................................................... ........ ................................................ 253m 3308 ........................................ 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 ........................................ 305(b) ............................................................................................................................. ........ ................................................ 255 4502 


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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(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 ........................................ 310 .................................................................................................................................. 63 397 ......................................... 260 3101 


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........................................ 311 .................................................................................................................................. ........ ................................................ 261 3102 ........................................ 312 .................................................................................................................................. ........ ................................................ 262 4701 ........................................ 313 .................................................................................................................................. ........ ................................................ 263 3103 ........................................ 314 .................................................................................................................................. ........ ................................................ 264 3306 ........................................ 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 3306 ........................................ 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 ........................................ 5(b) ................................................................................................................................. 79 1035 ....................................... 354 6705 


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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 

........................................ 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 2304 ........................................ 6(i) .................................................................................................................................. 88 797 ......................................... 405 1125 ........................................ 6(j) .................................................................................................................................. ........ ................................................ 405 1126 


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........................................ 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 2306 ........................................ 14(b) ............................................................................................................................... 88 800 ......................................... 412 2305 ........................................ 15 .................................................................................................................................... ........ ................................................ 413 1124 ........................................ 16 .................................................................................................................................... ........ ................................................ 414 1702 ........................................ 16A(a)–(c) ...................................................................................................................... ........ ................................................ 414b 1311 ........................................ 16A(d), (e) ...................................................................................................................... ........ ................................................ 414b 1312 ........................................ 18 .................................................................................................................................... ........ ................................................ 416 1707 ........................................ 19 .................................................................................................................................... ........ ................................................ 417 1710 ........................................ 20 .................................................................................................................................... ........ ................................................ 418 1704 ........................................ 21 .................................................................................................................................... ........ ................................................ 418a 2302 ........................................ 22 .................................................................................................................................... ........ ................................................ 418b 1706 ........................................ 23 .................................................................................................................................... ........ ................................................ 419 1708 ........................................ 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 1709 ........................................ 37 .................................................................................................................................... ........ ................................................ 433 1703 ........................................ 38 .................................................................................................................................... ........ ................................................ 434 2307 


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HR 5414 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 

........................................ 39 .................................................................................................................................... ........ ................................................ 435 1127 ........................................ 40 .................................................................................................................................... ........ ................................................ 436 2308 ........................................ 41 .................................................................................................................................... ........ ................................................ 437 2309 

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 6901 ........................................ 3 ...................................................................................................................................... 92 2383 ....................................... 602 6902 ........................................ 4 ...................................................................................................................................... 92 2384 ....................................... 603 6902 ........................................ 5 ...................................................................................................................................... 92 2384 ....................................... 604 6903 ........................................ 6(a) (1st, 2d sentences) .................................................................................................. 92 2384 ....................................... 605 6903 ........................................ 6(a) (3d, 4th sentences) ................................................................................................. ........ ................................................ 605 6903 ........................................ 6(a) (5th–last sentences), (b), (c)(1)–(5) ....................................................................... 92 2384 ....................................... 605 6903 ........................................ 6(c)(6), (7), (d), (e) ........................................................................................................ ........ ................................................ 605 6903 ........................................ 7 ...................................................................................................................................... 92 2385 ....................................... 606 6904 ........................................ 8(a)–(e) ........................................................................................................................... 92 2385 ....................................... 607 6905 ........................................ 8(f) .................................................................................................................................. 92 2386 ....................................... 607 6906 ........................................ 8(g) ................................................................................................................................. 92 2387 ....................................... 607 6907 ........................................ 8(h) ................................................................................................................................. 92 2387 ....................................... 607 6905 ........................................ 8(i) .................................................................................................................................. 92 2387 ....................................... 607 ................................................................ 9 ...................................................................................................................................... 92 2387 ....................................... 608 6906 ........................................ 10(a) ............................................................................................................................... 92 2388 ....................................... 609 6904 ........................................ 10(b)–(e) ......................................................................................................................... 92 2388 ....................................... 609 6907 ........................................ 10(f) ................................................................................................................................ ........ ................................................ 609 6907 ........................................ 11 .................................................................................................................................... 92 2388 ....................................... 610 6905 ........................................ 12 .................................................................................................................................... 92 2389 ....................................... 611 6909 ........................................ 13 .................................................................................................................................... 92 2389 ....................................... 612 6908 ........................................ 15 .................................................................................................................................... 92 2391 ....................................... 613 ................................................................ 16 .................................................................................................................................... 92 2391 ....................................... 601 note ........................

1984 

Oct. 30 .................... 98–577 .............................. 502 .................................................................................................................................. 98 3085 ....................................... 414a 1705 


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213 

HR 5414 RH 

1988 

Oct. 1 ...................... 100–463 ............................ 8141 ................................................................................................................................ 102 2270–47 ................................. 405b 2303 Oct. 25 .................... 100–533 ............................ 502 .................................................................................................................................. 102 2697 ....................................... 417a 1711 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 6909 

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 3306 

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 Sept. 30 ................... 108–87 .............................. 8033 ................................................................................................................................ 117 1079 ....................................... 10b–2 8304 Nov. 24 .................... 108–136 ............................ 1412(a) ........................................................................................................................... 117 1664 ....................................... 433 note 1703 

........................................ 1413 ................................................................................................................................ 117 1665 ....................................... 433 note 1703 


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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 

........................................ 1414 ................................................................................................................................ 117 1666 ....................................... 433 note 1128 ........................................ 1428 ................................................................................................................................ 117 1670 ....................................... 253a note 3305 ........................................ 1431(b) ........................................................................................................................... 117 1671 ....................................... 405 note 1129 ........................................ 1432 ................................................................................................................................ 117 1672 ....................................... 264 note 3306 ........................................ 1441 ................................................................................................................................ 117 1673 ....................................... 428a note 1904 

2004 

Oct. 28 .................... 108–375 ............................ 807(c) ............................................................................................................................. 118 2011 ....................................... 431a note 1908

2006 

Jan. 6 ...................... 109–163 ............................ 847(a) ............................................................................................................................. 119 3391 ....................................... 438 See 

§ 6(b)(2)(C) of 

bill. 

........................................ 847(d)(1) ........................................................................................................................ 119 3393 ....................................... 601 See 

§ 6(b)(2)(A) of 

bill. 

........................................ 847(d)(2)–(4) .................................................................................................................. 119 3393 ....................................... 607 See 

§ 6(b)(2)(C) of 

bill. 


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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 


jcorcoran on PRODPC62 with BILLS
House Calendar No. 230 

109TH CONGRESS 

2D SESSION H. R. 5414 

[Report No. 109

–663] 

A BILL 

To enact certain laws relating to public contracts as 

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

SEPTEMBER 15, 2006 

Referred to the House Calendar and ordered to be 

printed 


jcorcoran on PRODPC62 with BILLS