I 
108TH CONGRESS 
2D SESSION 
H. R. 4320
To revise, codify, and enact without substantive change certain general and 
permanent laws, related to public contracts, as title 41, United States 
Code, ‘‘Public Contracts’’. 
IN THE HOUSE OF REPRESENTATIVES 
MAY 10, 2004
Mr. SENSENBRENNER (for himself and Mr. CONYERS) introduced the 
following bill; which was referred to the Committee on the Judiciary 
A BILL 
To revise, codify, and enact without substantive change cer-
tain general and permanent laws, related to public con-
tracts, as title 41, United States Code, ‘‘Public Con-
tracts’’.
Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, 
SECTION 1. TITLE 41, UNITED STATES CODE. 
Certain general and permanent laws of the United States, related to pub-
lic contracts, are revised, codified, and enacted as title 41, United States 
Code, ‘‘Public Contracts’’, as follows: 
TITLE 41—PUBLIC CONTRACTS
Subtitle 
Sec. 
I. FEDERAL PROCUREMENT POLICY ................................................
101
II. OTHER ADVERTISING AND CONTRACT PROVISIONS ..........
6101
III. MISCELLANEOUS ....................................................................................
8101
Subtitle I—Federal Procurement Policy 
PART A—GENERAL
Chapter 
Sec. 
1. Definitions ...................................................................................................
101
PART B—ADMINISTRATIVE
11. Office of Federal Procurement Policy ..............................................
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 Informa-
tion.
2101
23. Miscellaneous .............................................................................................
2301
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
PART A—GENERAL 
CHAPTER 1—DEFINITIONS
SUBCHAPTER I—SUBTITLE DEFINITIONS 
Sec. 
101.
Acquisition. 
102.
Commercial component. 
103.
Commercial item. 
104.
Component. 
105.
Federal Acquisition Regulation. 
106.
Full and open competition. 
107.
Item and item of supply. 
108.
Major system. 
109.
Nondevelopmental item. 
110.
Procurement. 
111.
Procurement system. 
112.
Responsible source. 
113.
Standards. 
114.
Supplies. 
115.
Technical data. 
SUBCHAPTER II—PART B DEFINITIONS 
131.
Competitive procedures. 
132.
Executive agency. 
133.
Simplified acquisition threshold.
SUBCHAPTER I—SUBTITLE DEFINITIONS 
§ 101. Acquisition 
In this subtitle, the term ‘‘acquisition’’—
(1) means the process of acquiring, with appropriated amounts, by 
contract for purchase or lease, property or services (including construc-
tion) that support the missions and goals of an executive agency, from 
the point at which the requirements of the executive agency are estab-
lished in consultation with the chief acquisition officer of the executive 
agency; and 
(2) includes—
(A) the process of acquiring property or services that are al-
ready in existence, or that must be created, developed, dem-
onstrated, and evaluated; 
(B) the description of requirements to satisfy agency needs; 
(C) solicitation and selection of sources; 
(D) award of contracts; 
(E) contract performance; 
(F) contract financing; 
(G) management and measurement of contract performance 
through final delivery and payment; and 
(H) technical and management functions directly related to the 
process of fulfilling agency requirements by contract. 
§ 102. Commercial component 
In this subtitle, the term ‘‘commercial component’’ means a component 
that is a commercial item. 
§ 103. Commercial item 
In this subtitle, the term ‘‘commercial item’’ means—
(1) an item, other than real property, that—
(A) is of a type customarily used by the general public or by 
nongovernmental entities for purposes other than governmental 
purposes; and 
(B) has been sold, leased, or licensed, or offered for sale, lease, 
or license, to the general public; 
(2) an item that—
(A) evolved from an item described in clause (1) through ad-
vances in technology or performance; and 
(B) is not yet available in the commercial marketplace but will 
be available in the commercial marketplace in time to satisfy the 
delivery requirements under a Federal Government solicitation; 
(3) an item that would satisfy the criteria in clause (1) or (2) were 
it not for—
(A) modifications of a type customarily available in the commer-
cial marketplace; or 
(B) minor modifications made to meet Government require-
ments; 
(4) any combination of items meeting the requirements of clause (1), 
(2), (3), or (5) that are of a type customarily combined and sold in 
combination to the general public;
(5) installation services, maintenance services, repair services, train-
ing services, and other services if—
(A) those services are procured for support of an item referred 
to in clause (1), (2), (3), or (4), regardless of whether the services 
are provided by the same source or at the same time as the item; 
and 
(B) the source of the services provides similar services contem-
poraneously to the general public under terms and conditions simi-
lar to those offered to the Government; 
(6) services offered and sold competitively, in substantial quantities, 
in the commercial marketplace based on established catalog or market 
prices for specific tasks performed or specific outcomes to be achieved 
and under standard commercial terms and conditions; 
(7) any item, combination of items, or service referred to in clauses 
(1)–(6) even though the item, combination of items, or service is trans-
ferred between or among separate divisions, subsidiaries, or affiliates 
of a contractor; or 
(8) a nondevelopmental item if the procuring agency determines, in 
accordance with conditions in the Federal Acquisition Regulation, that 
the item was developed exclusively at private expense and has been sold 
in substantial quantities, on a competitive basis, to multiple State and 
local governments. 
§ 104. Component 
In this subtitle, the term ‘‘component’’ means an item supplied to the 
Federal Government as part of an end item or of another component. 
§ 105. Federal Acquisition Regulation 
In this subtitle, the term ‘‘Federal Acquisition Regulation’’ means the 
regulation issued under section 1302(a)(1) of this title. 
§ 106. Full and open competition 
In this subtitle, the term ‘‘full and open competition’’, when used with 
respect to a procurement, means that all responsible sources are permitted 
to submit sealed bids or competitive proposals on the procurement. 
§ 107. Item and item of supply 
In this subtitle, the terms ‘‘item’’ and ‘‘item of supply’’—
(1) mean an individual part, component, subassembly, assembly, or 
subsystem integral to a major system, and other property which may 
be replaced during the service life of the system, including spare parts 
and replenishment spare parts; but 
(2) do not include packaging or labeling associated with shipment or 
identification of an item. 
§ 108. Major system 
(a) IN GENERAL.—In this subtitle, the term ‘‘major system’’ means a 
combination of elements that will function together to produce the capabili-
ties required to fulfill a mission need. These elements may include hardware, 
equipment, software, or a combination of hardware, equipment, and soft-
ware, but do not include construction or other improvements to real prop-
erty. 
(b) SYSTEM DEEMED TO BE MAJOR SYSTEM.—A system is deemed to 
be a major system if—
(1) the Department of Defense is responsible for the system and the 
total expenditures for research, development, testing, and evaluation for 
the system are estimated to exceed $75,000,000 (based on fiscal year 
1980 constant dollars) or the eventual total expenditure for procure-
ment of more than $300,000,000 (based on fiscal year 1980 constant 
dollars); 
(2) a civilian agency is responsible for the system and total expendi-
tures for the system are estimated to exceed the greater of $750,000 
(based on fiscal year 1980 constant dollars) or the dollar threshold for 
a major system established by the agency pursuant to Office of Man-
agement and Budget (OMB) Circular A–109, entitled ‘‘Major Systems 
Acquisitions’’; or 
(3) the head of the agency responsible for the system designates the 
system a major system. 
§ 109. Nondevelopmental item 
In this subtitle, the term ‘‘nondevelopmental item’’ means—
(1) a commercial item; 
(2) a previously developed item of supply that is in use by a depart-
ment or agency of the Federal Government, a State or local govern-
ment, or a foreign government with which the United States has a mu-
tual defense cooperation agreement; 
(3) an item of supply described in clause (1) or (2) that requires 
only minor modification or modification of the type customarily avail-
able in the commercial marketplace to meet the requirements of the 
procuring department or agency; or 
(4) an item of supply currently being produced that does not meet 
the requirements of clause (1), (2), or (3) solely because the item is 
not yet in use. 
§ 110. Procurement 
In this subtitle, the term ‘‘procurement’’ includes all stages of the process 
of acquiring property or services, beginning with the process for determining 
a need for property or services and ending with contract completion and 
closeout.
§ 111. Procurement system 
In this subtitle, the term ‘‘procurement system’’ means the integration of 
the procurement process, the professional development of procurement per-
sonnel, and the management structure for carrying out the procurement 
function. 
§ 112. Responsible source 
In this subtitle, the term ‘‘responsible source’’ means a prospective con-
tractor that—
(1) has adequate financial resources to perform the contract or the 
ability to obtain those resources; 
(2) is able to comply with the required or proposed delivery or per-
formance schedule, taking into consideration all existing commercial 
and Federal Government business commitments; 
(3) has a satisfactory performance record; 
(4) has a satisfactory record of integrity and business ethics; 
(5) has the necessary organization, experience, accounting and oper-
ational controls, and technical skills, or the ability to obtain the organi-
zation, experience, controls, and skills; 
(6) has the necessary production, construction, and technical equip-
ment and facilities, or the ability to obtain the equipment and facilities; 
and 
(7) is otherwise qualified and eligible to receive an award under ap-
plicable laws and regulations. 
§ 113. Standards 
In this subtitle, the term ‘‘standards’’ means the criteria for determining 
the effectiveness of the procurement system by measuring the performance 
of the various elements of the system. 
§ 114. Supplies 
In this subtitle, the term ‘‘supplies’’—
(1) means an individual part, component, subassembly, assembly, or 
subsystem integral to a major system, and other property which may 
be replaced during the service life of the system, including spare parts 
and replenishment spare parts; but 
(2) does not include packaging or labeling associated with shipment 
or identification of an item. 
§ 115. Technical data 
In this subtitle, the term ‘‘technical data’’—
(1) means recorded information (regardless of the form or method 
of the recording) of a scientific or technical nature (including computer
software documentation) relating to supplies procured by an agency; 
but
(2) does not include computer software or financial, administrative, 
cost or pricing, or management data or other information incidental to 
contract administration. 
SUBCHAPTER II—PART B DEFINITIONS 
§ 131. Competitive procedures 
In part B, the term ‘‘competitive procedures’’ means procedures under 
which an agency enters into a contract pursuant to full and open competi-
tion. 
§ 132. Executive agency 
In part B, the term ‘‘executive agency’’ means—
(1) an executive department specified in section 101 of title 5; 
(2) a military department specified in section 102 of title 5; 
(3) an independent establishment as defined in section 104(1) of title 
5; and 
(4) a wholly owned Government corporation fully subject to chapter 
91 of title 31. 
§ 133. Simplified acquisition threshold 
In part B, the term ‘‘simplified acquisition threshold’’ means $100,000.
PART B—ADMINISTRATIVE 
CHAPTER 11—OFFICE OF FEDERAL PROCUREMENT 
POLICY
SUBCHAPTER I—GENERAL 
Sec. 
1101.
Office of Federal Procurement Policy. 
1102.
Administrator for Federal Procurement Policy. 
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 engi-
neering services. 
1129.
Center of excellence in contracting for services. 
1130.
Effect of part on other law. 
1131.
Annual report.
SUBCHAPTER I—GENERAL 
§ 1101. Office of Federal Procurement Policy 
(a) ORGANIZATION.—There is an Office of Federal Procurement Policy 
in the Office of Management and Budget. 
(b) PURPOSES.—The purposes of the Office of Federal Procurement Pol-
icy are to—
(1) provide overall direction of Federal Government-wide procure-
ment policies, regulations, procedures, and forms for executive agencies; 
and
(2) promote economy, efficiency, and effectiveness in the procure-
ment of property and services by the executive branch of the Govern-
ment. 
(c) AUTHORIZATION OF APPROPRIATIONS.—Necessary amounts may be 
appropriated each fiscal year for the Office of Federal Procurement Policy 
to carry out the responsibilities of the Office for that fiscal year. 
§ 1102. Administrator for Federal Procurement Policy 
(a) HEAD OF OFFICE.—The head of the Office of Federal Procurement 
Policy is the Administrator for Federal Procurement Policy. 
(b) APPOINTMENT.—The Administrator is appointed by the President, by 
and with the advice and consent of the Senate. 
SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE 
ADMINISTRATOR 
§ 1121. General authority 
(a) OVERALL DIRECTION
AND LEADERSHIP.—The Administrator for 
Federal Procurement Policy shall provide overall direction of procurement 
policy and leadership in the development of procurement systems of the ex-
ecutive agencies. 
(b) FEDERAL ACQUISITION REGULATION.—To the extent that the Ad-
ministrator considers appropriate in carrying out the policies and functions 
set forth in this part, and with due regard for applicable laws and the pro-
gram activities of the executive agencies, the Administrator may prescribe 
Federal Government-wide procurement policies. The policies shall be imple-
mented in a single Government-wide procurement regulation called the Fed-
eral Acquisition Regulation. 
(c) POLICIES TO BE FOLLOWED BY EXECUTIVE AGENCIES.—
(1) AREAS OF PROCUREMENT FOR WHICH POLICIES ARE TO BE FOL-
LOWED.—The policies implemented in the Federal Acquisition Regula-
tion shall be followed by executive agencies in the procurement of—
(A) property other than real property in being; 
(B) services, including research and development; and 
(C) construction, alteration, repair, or maintenance of real prop-
erty. 
(2) PROCEDURES
TO
ENSURE
COMPLIANCE.—The Administrator 
shall establish procedures to ensure compliance with the Federal Acqui-
sition Regulation by all executive agencies. 
(3) APPLICATION OF OTHER LAWS.—The authority of an executive 
agency under another law to prescribe policies, regulations, procedures, 
and forms for procurement is subject to the authority conferred in this 
section and sections 1122(a)–(c)(1), 1125, 1126, 1130, 1131, and 
2304 of this title.
(d) WHEN CERTAIN AGENCIES ARE UNABLE TO AGREE OR FAIL TO 
ACT.—In any instance in which the Administrator determines that the De-
partment of Defense, the National Aeronautics and Space Administration, 
and the General Services Administration are unable to agree on or fail to 
issue Government-wide regulations, procedures, and forms in a timely man-
ner, including regulations, procedures, and forms necessary to implement 
prescribed policy the Administrator initiates under subsection (b), the Ad-
ministrator, with due regard for applicable laws and the program activities 
of the executive agencies and consistent with the policies and functions set 
forth in this part, shall prescribe Government-wide regulations, procedures, 
and forms which executive agencies shall follow in procuring items listed in 
subsection (c)(1). 
(e) OVERSIGHT
OF PROCUREMENT REGULATIONS
OF OTHER AGEN-
CIES.—The Administrator, with the concurrence of the Director of the Of-
fice of Management and Budget, and with consultation with the head of the 
agency concerned, may deny the prescription of or rescind any Government-
wide regulation or final rule or regulation of any executive agency relating 
to procurement if the Administrator determines that the rule or regulation 
is inconsistent with any policies, regulations, or procedures issued pursuant 
to subsection (b). 
(f) LIMITATION ON AUTHORITY.—The authority of the Administrator 
under this part does not—
(1) impair or interfere with the determination by executive agencies 
of their need for, or their use of, specific property, services, or con-
struction, including particular specifications for the property, services, 
or construction; or 
(2) interfere with the determination by executive agencies of specific 
actions in the award or administration of procurement contracts. 
§ 1122. Functions 
(a) IN GENERAL.—The functions of the Administrator for Federal Pro-
curement Policy include—
(1) providing leadership and ensuring action by the executive agen-
cies in establishing, developing, and maintaining the single system of 
simplified Federal Government-wide procurement regulations and re-
solving differences among the executive agencies in developing sim-
plified Government-wide procurement regulations, procedures, and 
forms;
(2) coordinating the development of Government-wide procurement 
system standards that executive agencies shall implement in their pro-
curement systems;
(3) providing leadership and coordination in formulating the execu-
tive branch position on legislation relating to procurement; 
(4)(A) providing for and directing the activities of the computer-
based Federal Procurement Data System (including recommending to 
the Administrator of General Services a sufficient budget for those ac-
tivities), which shall be located in the General Services Administration, 
in order to adequately collect, develop, and disseminate procurement 
data; and 
(B) ensuring executive agency compliance with the record require-
ments of section 1710 of this title; 
(5) providing for and directing the activities of the Federal Acquisi-
tion Institute (including recommending to the Administrator of General 
Services a sufficient budget for those activities), which shall be located 
in the General Services Administration, in order to—
(A) foster and promote the development of a professional acqui-
sition workforce Government-wide; 
(B) promote and coordinate Government-wide research and 
studies to improve the procurement process and the laws, policies, 
methods, regulations, procedures, and forms relating to acquisition 
by the executive agencies; 
(C) collect data and analyze acquisition workforce data from the 
Office of Personnel Management, the heads of executive agencies, 
and, through periodic surveys, from individual employees; 
(D) periodically analyze acquisition career fields to identify crit-
ical competencies, duties, and tasks and related academic pre-
requisites, skills, and knowledge; 
(E) coordinate and assist agencies in identifying and recruiting 
highly qualified candidates for acquisition fields; 
(F) develop instructional materials for acquisition personnel in 
coordination with private and public acquisition colleges and train-
ing facilities; 
(G) evaluate the effectiveness of training and career develop-
ment programs for acquisition personnel; 
(H) promote the establishment and utilization of academic pro-
grams by colleges and universities in acquisition fields; 
(I) facilitate, to the extent requested by agencies, interagency 
intern and training programs; and 
(J) perform other career management or research functions as 
directed by the Administrator for Federal Procurement Policy; 
(6) administering section 1703(a)–(h) of this title;
(7) establishing criteria and procedures to ensure the effective and 
timely solicitation of the viewpoints of interested parties in the develop-
ment of procurement policies, regulations, procedures, and forms; 
(8) developing standard contract forms and contract language in 
order to reduce the Government’s cost of procuring property and serv-
ices and the private sector’s cost of doing business with the Govern-
ment; 
(9) providing for a Government-wide award to recognize and promote 
vendor excellence; 
(10) providing for a Government-wide award to recognize and pro-
mote excellence in officers and employees of the Government serving in 
procurement-related positions; 
(11) developing policies, in consultation with the Administrator of 
the Small Business Administration, that ensure that small businesses, 
qualified HUBZone small business concerns (as defined in section 3(p) 
of the Small Business Act (15 U.S.C. 632(p)), small businesses owned 
and controlled by socially and economically disadvantaged individuals, 
and small businesses owned and controlled by women are provided with 
the maximum practicable opportunities to participate in procurements 
that are conducted for amounts below the simplified acquisition thresh-
old; 
(12) developing policies that will promote achievement of goals for 
participation by small businesses, qualified HUBZone small business 
concerns (as defined in section 3(p) of the Small Business Act (15 
U.S.C. 632(p)), small businesses owned and controlled by socially and 
economically disadvantaged individuals, and small businesses owned 
and controlled by women; and 
(13) completing action, as appropriate, on the recommendations of 
the Commission on Government Procurement. 
(b) CONSULTATION AND ASSISTANCE.—In carrying out the functions in 
subsection (a), the Administrator for Federal Procurement Policy—
(1) shall consult with the affected executive agencies, including the 
Small Business Administration; 
(2) with the concurrence of the heads of affected executive agencies, 
may designate one or more executive agencies to assist in performing 
those functions; and 
(3) may establish advisory committees or other interagency groups 
to assist in providing for the establishment, development, and mainte-
nance of a single system of simplified Government-wide procurement 
regulations and to assist in performing any other function the Adminis-
trator considers appropriate.
(c) ASSIGNMENT, DELEGATION, OR TRANSFER.—
(1) TO ADMINISTRATOR.—Except as otherwise provided by law, only 
duties, functions, or responsibilities expressly assigned by this part 
shall be assigned, delegated, or transferred to the Administrator for 
Federal Procurement Policy. 
(2) BY ADMINISTRATOR.—
(A) WITHIN OFFICE.—The Administrator of Federal Procure-
ment Policy may make and authorize delegations within the Office 
of Federal Procurement Policy that the Administrator determines 
to be necessary to carry out this part. 
(B) TO ANOTHER EXECUTIVE AGENCY.—The Administrator of 
Federal Procurement Policy may delegate, and authorize succes-
sive redelegations of, an authority, function, or power of the Ad-
ministrator under this part (other than the authority to provide 
overall direction of Federal procurement policy and to prescribe 
policies and regulations to carry out the policy) to another execu-
tive agency with the consent of the head of the executive agency 
or at the direction of the President. 
§ 1123. Small business concerns 
In formulating the Federal Acquisition Regulation and procedures to en-
sure compliance with the Regulation, the Administrator of the Office of 
Federal Procurement Policy, in consultation with the Small Business Ad-
ministration, shall—
(1) conduct analyses of the impact on small business concerns result-
ing from revised procurement regulations; and 
(2) incorporate into revised procurement regulations simplified bid-
ding, contract performance, and contract administration procedures for 
small business concerns. 
§ 1124. Tests of innovative procurement methods and proce-
dures 
(a) IN GENERAL.—The Administrator for Federal Procurement Policy 
may develop innovative procurement methods and procedures to be tested 
by selected executive agencies. In developing a program to test innovative 
procurement methods and procedures under this subsection, the Adminis-
trator shall consult with the heads of executive agencies to—
(1) ascertain the need for and specify the objectives of the program;
(2) develop the guidelines and procedures for carrying out the pro-
gram and the criteria to be used in measuring the success of the pro-
gram;
(3) evaluate the potential costs and benefits which may be derived 
from the innovative procurement methods and procedures tested under 
the program; 
(4) select the appropriate executive agencies or components of execu-
tive agencies to carry out the program; 
(5) specify the categories and types of products or services to be pro-
cured under the program; and 
(6) develop the methods to be used to analyze the results of the pro-
gram. 
(b) APPROVAL OF EXECUTIVE AGENCIES REQUIRED.—A program to test 
innovative procurement methods and procedures may not be carried out un-
less approved by the heads of the executive agencies selected to carry out 
the program. 
(c) REQUEST FOR WAIVER OF LAW.—If the Administrator determines 
that it is necessary to waive the application of a provision of law to carry 
out a proposed program to test innovative procurement methods and proce-
dures under subsection (a), the Administrator shall transmit notice of the 
proposed program to the Committee on Government Reform of the House 
of Representatives and the Committee on Governmental Affairs of the Sen-
ate and request that the Committees take the necessary action to provide 
that the provision of law does not apply with respect to the proposed pro-
gram. The notification to Congress shall include—
(1) a description of the proposed program (including the scope and 
purpose of the proposed program); 
(2) the procedures to be followed in carrying out the proposed pro-
gram; 
(3) the provisions of law affected and the application of any provi-
sion of law that must be waived in order to carry out the proposed pro-
gram; and 
(4) the executive agencies involved in carrying out the proposed pro-
gram. 
§ 1125. Recipients of Federal grants or assistance 
(a) AUTHORITY.—With due regard to applicable laws and the program 
activities of the executive agencies administering Federal programs of 
grants or assistance, the Administrator for Federal Procurement Policy may 
prescribe Federal Government-wide policies, regulations, procedures, and 
forms that the Administrator considers appropriate and that executive agen-
cies shall follow in providing for the procurement, to the extent required 
under those programs, of property or services referred to in section 
1121(c)(1) of this title by recipients of Federal grants or assistance under 
the programs.
(b) LIMITATION.—Subsection (a) does not—
(1) permit the Administrator to authorize procurement or supply 
support, either directly or indirectly, to a recipient of a Federal grant 
or assistance; or 
(2) authorize action by a recipient contrary to State and local law 
in the case of a program to provide a Federal grant or assistance to 
a State or political subdivision. 
§ 1126. Policy regarding consideration of contractor past 
performance 
(a) GUIDANCE.—The Administrator for Federal Procurement Policy shall 
prescribe for executive agencies guidance regarding consideration of the past 
contract performance of offerors in awarding contracts. The guidance shall 
include—
(1) standards for evaluating past performance with respect to cost 
(when appropriate), schedule, compliance with technical or functional 
specifications, and other relevant performance factors that facilitate 
consistent and fair evaluation by all executive agencies; 
(2) policies for the collection and maintenance of information on past 
contract performance that, to the maximum extent practicable, facili-
tate automated collection, maintenance, and dissemination of informa-
tion and provide for ease of collection, maintenance, and dissemination 
of information by other methods, as necessary; 
(3) policies for ensuring that—
(A) offerors are afforded an opportunity to submit relevant in-
formation on past contract performance, including performance 
under contracts entered into by the executive agency concerned, 
other departments and agencies of the Federal Government, agen-
cies of State and local governments, and commercial customers; 
and 
(B) the information submitted by offerors is considered; and 
(4) the period for which information on past performance of offerors 
may be maintained and considered. 
(b) INFORMATION NOT AVAILABLE.—If there is no information on past 
contract performance of an offeror or the information on past contract per-
formance is not available, the offeror may not be evaluated favorably or un-
favorably on the factor of past contract performance. 
§ 1127. Determining benchmark compensation amount 
(a) DEFINITIONS.—In this section—
(1) BENCHMARK COMPENSATION AMOUNT.—The term ‘‘benchmark 
compensation amount’’, for a fiscal year, is the median amount of the 
compensation provided for all senior executives of all benchmark cor-
porations for the most recent year for which data is available at the 
time the determination under subsection (b) is made. 
(2) BENCHMARK
CORPORATION.—The term ‘‘benchmark corpora-
tion’’, with respect to a fiscal year, means a publicly-owned United 
States corporation that has annual sales in excess of $50,000,000 for 
the fiscal year. 
(3) COMPENSATION.—The term ‘‘compensation’’, for a fiscal year, 
means the total amount of wages, salary, bonuses, and deferred com-
pensation for the fiscal year, whether paid, earned, or otherwise accru-
ing, as recorded in an employer’s cost accounting records for the fiscal 
year. 
(4) FISCAL YEAR.—The term ‘‘fiscal year’’ means a fiscal year a 
contractor establishes for accounting purposes. 
(5) PUBLICLY-OWNED
UNITED
STATES
CORPORATION.—The term 
‘‘publicly-owned United States corporation’’ means a corporation—
(A) organized under the laws of a State of the United States, 
the District of Columbia, Puerto Rico, or a possession of the 
United States; and 
(B) whose voting stock is publicly traded. 
(6) SENIOR EXECUTIVES.—The term ‘‘senior executives’’, with re-
spect to a contractor, means the five most highly compensated employ-
ees in management positions at each home office and each segment of 
the contractor. 
(b) DETERMINING BENCHMARK COMPENSATION AMOUNT.—For purposes 
of section 4304(a)(16) of this title and section 2324(e)(1)(P) of title 10, 
the Administrator for Federal Procurement Policy shall review commercially 
available surveys of executive compensation and, on the basis of the results 
of the review, determine a benchmark compensation amount to apply for 
each fiscal year. In making determinations under this subsection the Admin-
istrator shall consult with the Director of the Defense Contract Audit Agen-
cy and other officials of executive agencies as the Administrator considers 
appropriate. 
§ 1128. Maintaining necessary capability with respect to ac-
quisition of architectural and engineering services 
The Administrator for Federal Procurement Policy, in consultation with 
the Secretary of Defense, the Administrator of General Services, and the 
Director of the Office of Personnel Management, shall develop and imple-
ment a plan to ensure that the Federal Government maintains the necessary
capability with respect to the acquisition of architectural and engineering 
services to—
(1) ensure that Government employees have the expertise to deter-
mine agency requirements for those services; 
(2) establish priorities and programs, including acquisition plans; 
(3) establish professional standards; 
(4) develop scopes of work; and 
(5) award and administer contracts for those services. 
§ 1129. Center of excellence in contracting for services 
The Administrator for Federal Procurement Policy shall maintain a cen-
ter of excellence in contracting for services. The center shall assist the ac-
quisition community by identifying, and serving as a clearinghouse for, best 
practices in contracting for services in the public and private sectors. 
§ 1130. Effect of part on other law 
This part does not impair or affect the authorities or responsibilities con-
ferred by part C of this subtitle. 
§ 1131. Annual report 
The Administrator for Federal Procurement Policy annually shall submit 
to Congress an assessment of the progress made in executive agencies in 
implementing the policy regarding major acquisitions that is stated in sec-
tion 3104(a) of this title. The Administrator shall use data from existing 
management systems in making the assessment. 
CHAPTER 13—ACQUISITION COUNCILS
SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY COUNCIL 
Sec. 
1301.
Establishment and membership. 
1302.
Functions and authority. 
1303.
Contract clauses and certifications. 
SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL 
1311.
Establishment and membership. 
1312.
Functions.
SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY 
COUNCIL 
§ 1301. Establishment and membership 
(a) ESTABLISHMENT.—There is a Federal Acquisition Regulatory Council 
to assist in the direction and coordination of Federal Government-wide pro-
curement policy and Government-wide procurement regulatory activities in 
the Government. 
(b) MEMBERSHIP.—
(1) MAKEUP OF COUNCIL.—The Council consists of—
(A) the Administrator for Federal Procurement Policy; 
(B) the Secretary of Defense; 
(C) the Administrator of National Aeronautics and Space; and 
(D) the Administrator of General Services. 
(2) DESIGNATION OF OTHER OFFICIALS.—
(A) OFFICIALS WHO MAY BE DESIGNATED.—Notwithstanding 
section 121(d)(1) and (2) of title 40, the officials specified in 
clauses (B)–(D) of paragraph (1) may designate to serve on and 
attend meetings of the Council in place of that official—
(i) the official assigned by statute with the responsibility 
for acquisition policy in each of their respective agencies or, 
in the case of the Secretary of Defense, an official at an orga-
nizational level not lower than an Assistant Secretary of De-
fense within the Office of the Under Secretary of Defense for 
Acquisition, Technology, and Logistics; or 
(ii) if no official of that agency is assigned by statute with 
the responsibility for acquisition policy for that agency, the 
official designated pursuant to section 1702(c) of this title. 
(B) LIMITATION ON DESIGNATION.—No other official or em-
ployee may be designated to serve on the Council. 
§ 1302. Functions and authority 
(a) FUNCTIONS.—
(1) ISSUE AND MAINTAIN FEDERAL ACQUISITION REGULATION.—
Subject to sections 1121, 1122(a)–(c)(1), 1125, 1126, 1130, 1131, and 
2304 of this title, the Administrator of General Services, the Secretary 
of Defense, and the Administrator of National Aeronautics and Space, 
pursuant to their respective authorities under part C of this subtitle, 
chapters 4 and 137 of title 10, and the National Aeronautics and 
Space Act of 1958 (42 U.S.C. 2451 et seq.), shall jointly issue and 
maintain in accordance with subsection (d) a single Government-wide 
procurement regulation, to be known as the Federal Acquisition Regu-
lation. 
(2) LIMITATION ON OTHER REGULATIONS.—Other regulations relat-
ing to procurement issued by an executive agency shall be limited to—
(A) regulations essential to implement Government-wide policies 
and procedures within the agency; and 
(B) additional policies and procedures required to satisfy the 
specific and unique needs of the agency. 
(3) ENSURE
CONSISTENT
REGULATIONS.—The Administrator for 
Federal Procurement Policy, in consultation with the Council, shall en-
sure that procurement regulations prescribed by executive agencies are 
consistent with the Federal Acquisition Regulation and in accordance 
with the policies prescribed pursuant to section 1121(b) of this title. 
(4) REQUEST TO REVIEW REGULATION.—
(A) BASIS FOR REQUEST.—Under procedures the Administrator 
for Federal Procurement Policy establishes, a person may request
the Administrator to review a regulation relating to procurement 
on the basis that the regulation is inconsistent with the Federal 
Acquisition Regulation. 
(B) PERIOD OF REVIEW.—Unless the request is frivolous or 
does not, on its face, state a valid basis for the review, the Admin-
istrator for Federal Procurement Policy shall complete the review 
not later than 60 days after receiving the request. The time for 
completion of the review may be extended if the Administrator de-
termines that an additional period of review is required. The Ad-
ministrator shall advise the requester of the reasons for the exten-
sion and the date by which the review will be completed. 
(5) WHEN REGULATION IS INCONSISTENT OR NEEDS TO BE IM-
PROVED.—If the Administrator for Federal Procurement Policy deter-
mines that a regulation relating to procurement is inconsistent with the 
Federal Acquisition Regulation or that the regulation otherwise should 
be revised to remove an inconsistency with the policies issued under 
section 1121(b) of this title, the Administrator shall rescind or deny 
the promulgation of the regulation or take other action authorized 
under sections 1121, 1122(a)–(c)(1), 1125, 1126, 1130, 1131, and 
2304 of this title as may be necessary to remove the inconsistency. If 
the Administrator determines that the regulation, although not incon-
sistent with the Federal Acquisition Regulation or those policies, should 
be revised to improve compliance with the Regulation or policies, the 
Administrator shall take action authorized under sections 1121, 
1122(a)–(c)(1), 1125, 1126, 1130, 1131, and 2304 as may be nec-
essary and appropriate. 
(6) DECISIONS TO BE IN WRITING AND PUBLICLY AVAILABLE.—The 
decisions of the Administrator for Federal Procurement Policy shall be 
in writing and made publicly available. 
(b) ADDITIONAL RESPONSIBILITIES OF MEMBERSHIP.—
(1) IN GENERAL.—Subject to the authority, direction, and control of 
the head of the agency concerned, each official who represents an agen-
cy on the Council pursuant to section 1301(b) of this title shall—
(A) approve or disapprove all regulations relating to procure-
ment that are proposed for public comment, prescribed in final 
form, or otherwise made effective by that agency before the regula-
tion may be prescribed in final form, or otherwise made effective, 
except that the official may grant an interim approval, without re-
view, for not more than 60 days for a procurement regulation in 
urgent and compelling circumstances;
(B) carry out the responsibilities of that agency set forth in 
chapter 35 of title 44 for each information collection request that 
relates to procurement rules or regulations; and 
(C) eliminate or reduce—
(i) any redundant or unnecessary levels of review and ap-
proval in the procurement system of that agency; and 
(ii) redundant or unnecessary procurement regulations 
which are unique to that agency. 
(2) LIMITATION ON DELEGATION.—The authority to review and ap-
prove or disapprove regulations under paragraph (1)(A) may not be 
delegated to an individual outside the office of the official who rep-
resents the agency on the Council pursuant to section 1301(b) of this 
title. 
(c) GOVERNING POLICIES.—All actions of the Council and of members of 
the Council shall be in accordance with and furtherance of the policies pre-
scribed under section 1121(b) of this title. 
(d) GENERAL AUTHORITY WITH RESPECT TO FEDERAL ACQUISITION 
REGULATION.—Subject to section 1121(d) of this title, the Council shall 
manage, coordinate, control, and monitor the maintenance of, issuance of, 
and changes in, the Federal Acquisition Regulation. 
§ 1303. Contract clauses and certifications 
(a) REPETITIVE NONSTANDARD CONTRACT CLAUSES DISCOURAGED.—
The Federal Acquisition Regulatory Council shall prescribe regulations to 
discourage the use of a nonstandard contract clause on a repetitive basis. 
The regulations shall include provisions that—
(1) clearly define what types of contract clauses are to be treated 
as nonstandard clauses; and 
(2) require prior approval for the use of a nonstandard clause on a 
repetitive basis by an official at a level of responsibility above the con-
tracting officer. 
(b) WHEN CERTIFICATION REQUIRED.—
(1) BY LAW.—A certification by a contractor or offeror in a procure-
ment made or to be made by the Federal Government is not required 
by a law unless the law specifically provides that certification shall be 
required. 
(2) IN FEDERAL ACQUISITION REGULATION.—A requirement for a 
certification by a contractor or offeror may not be included in the Fed-
eral Acquisition Regulation unless—
(A) the certification requirement is specifically imposed by stat-
ute; or
(B) written justification for the certification requirement is pro-
vided to the Administrator for Federal Procurement Policy by the 
Council and the Administrator approves in writing the inclusion of 
the certification requirement. 
(3) EXECUTIVE AGENCY PROCUREMENT REGULATION.—
(A) DEFINITION.—In subparagraph (B), ‘‘head of the executive 
agency’’ with respect to a military department means the Sec-
retary of Defense. 
(B) WHEN CERTIFICATION REQUIREMENT MAY BE INCLUDED 
IN
REGULATION.—A requirement for a certification by a con-
tractor or offeror may not be included in a procurement regulation 
of an executive agency unless—
(i) the certification requirement is specifically imposed by 
statute; or 
(ii) written justification for the certification requirement is 
provided to the head of the executive agency by the senior 
procurement executive of the agency and the head of the exec-
utive agency approves in writing the inclusion of the certifi-
cation requirement. 
SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL 
§ 1311. Establishment and membership 
(a) ESTABLISHMENT.—There is in the executive branch a Chief Acquisi-
tion Officers Council. 
(b) MEMBERSHIP.—The members of the Council are—
(1) the Deputy Director for Management of the Office of Manage-
ment and Budget; 
(2) the Administrator for Federal Procurement Policy; 
(3) the Under Secretary of Defense for Acquisition, Technology, and 
Logistics; 
(4) the chief acquisition officer of each executive agency that is re-
quired to have a chief acquisition officer under section 1702 of this 
title and the senior procurement executive of each military department; 
and 
(5) any other senior agency officer of each executive agency, ap-
pointed by the head of the agency in consultation with the Chairman 
of the Council, who can effectively assist the Council in performing the 
functions set forth in section 1312(b) of this title and supporting the 
associated range of acquisition activities. 
(c) LEADERSHIP AND SUPPORT.—
(1) CHAIRMAN.—The Deputy Director is the chairman of the Coun-
cil.
(2) VICE CHAIRMAN.—The Vice Chairman of the Council shall be se-
lected by the Council from among its members. The Vice Chairman 
serves for one year and may serve multiple terms. 
(3) LEADER OF ACTIVITIES.—The Administrator for Federal Pro-
curement Policy shall lead the activities of the Council on behalf of the 
Deputy Director. 
(4) SUPPORT.—The Administrator for General Services shall provide 
administrative and other support for the Council. 
§ 1312. Functions 
(a) PRINCIPAL FORUM.—The Chief Acquisition Officers Council is the 
principal interagency forum for monitoring and improving the Federal ac-
quisition system. 
(b) FUNCTIONS.—The Council shall perform functions that include the 
following: 
(1) Develop recommendations for the Director of the Office of Man-
agement and Budget on Federal acquisition policies and requirements. 
(2) Share experiences, ideas, best practices, and innovative ap-
proaches related to Federal acquisition. 
(3) Assist the Administrator for Federal Procurement Policy in the 
identification, development, and coordination of multiagency projects 
and other innovative initiatives to improve Federal acquisition. 
(4) Promote effective business practices that ensure the timely deliv-
ery of best value products to the Federal Government and achieve ap-
propriate public policy objectives. 
(5) Further integrity, fairness, competition, openness, and efficiency 
in the Federal acquisition system. 
(6) Work with the Office of Personnel Management to assess and ad-
dress the hiring, training, and professional development needs of the 
Federal Government related to acquisition. 
(7) Work with the Administrator and the Federal Acquisition Regu-
latory Council to promote the business practices referred to in para-
graph (4) and other results of the functions carried out under this sub-
section. 
CHAPTER 15—COST ACCOUNTING STANDARDS
Sec. 
1501.
Cost Accounting Standards Board. 
1502.
Cost accounting standards. 
1503.
Contract price adjustment. 
1504.
Effect on other standards and regulations.
1505.
Examinations. 
1506.
Authorization of appropriations.
§ 1501. Cost Accounting Standards Board 
(a) ORGANIZATION.—The Cost Accounting Standards Board is an inde-
pendent board in the Office of Federal Procurement Policy.
(b) MEMBERSHIP.—
(1) NUMBER OF MEMBERS, CHAIRMAN, AND APPOINTMENT.—The 
Board consists of five members. One member is the Administrator for 
Federal Procurement Policy, who serves as Chairman. The other four 
members, all of whom shall have experience in Federal Government 
contract cost accounting, are as follows: 
(A) two representatives of the Government—
(i) one of whom is a representative of the Department of 
Defense appointed by the Secretary of Defense; and 
(ii) one of whom is an officer or employee of the General 
Services Administration appointed by the Administrator of 
General Services. 
(B) two individuals from the private sector, each of whom is ap-
pointed by the Administrator for Federal Procurement Policy, 
and—
(i) one of whom is a representative of industry; and 
(ii) one of whom is particularly knowledgeable about cost 
accounting problems and systems. 
(2) TERM OF OFFICE.—
(A) LENGTH OF TERM.—The term of office of each member, 
other than the Administrator for Federal Procurement Policy, is 
four years. The terms are staggered, with the terms of two mem-
bers expiring in the same year, the term of another member expir-
ing the next year, and the term of the last member expiring the 
year after that. 
(B) INDIVIDUAL
REQUIRED
TO
REMAIN
WITH
APPOINTING 
AGENCY.—A member appointed under paragraph (1)(A) may not 
continue to serve after ceasing to be an officer or employee of the 
agency from which that member was appointed. 
(3) VACANCY.—A vacancy on the Board shall be filled in the same 
manner in which the original appointment was made. A member ap-
pointed to fill a vacancy serves for the remainder of the term for which 
that member’s predecessor was appointed. 
(c) SENIOR STAFF.—The Administrator for Federal Procurement Policy, 
after consultation with the Board, may—
(1) appoint an executive secretary and two additional staff members 
without regard to the provisions of title 5 governing appointments in 
the competitive service; and 
(2) pay those employees without regard to the provisions of chapter 
51 and subchapter III of chapter 53 of title 5 relating to classification 
and General Schedule pay rates, except that those employees may not
receive pay in excess of the maximum rate of basic pay payable under 
section 5376 of title 5. 
(d) OTHER STAFF.—The Administrator for Federal Procurement Policy 
may appoint, fix the compensation of, and remove additional employees of 
the Board under the applicable provisions of title 5. 
(e) DETAILED AND TEMPORARY PERSONNEL.—For service on advisory 
committees and task forces to assist the Board in carrying out its functions 
and responsibilities—
(1) the Board, with the consent of the head of a Federal agency, 
may use, without reimbursement, personnel of that agency; and 
(2) the Administrator for Federal Procurement Policy, after con-
sultation with the Board, may procure temporary and intermittent 
services of personnel under section 3109(b) of title 5. 
(f) COMPENSATION.—
(1) OFFICERS AND EMPLOYEES OF THE GOVERNMENT.—Members of 
the Board who are officers or employees of the Government, and offi-
cers and employees of other agencies of the Government who are used 
under subsection (e)(1), may not receive additional compensation for 
services but shall continue to be compensated by the employing depart-
ment or agency of the officer or employee. 
(2) APPOINTEES
FROM
PRIVATE
SECTOR.—Each member of the 
Board appointed from the private sector shall receive compensation at 
a rate not to exceed the daily equivalent of the rate for level IV of the 
Executive Schedule for each day (including travel time) in which the 
member is engaged in the actual performance of duties vested in the 
Board. 
(3) TEMPORARY AND INTERMITTENT PERSONNEL.—An individual 
hired under subsection (e)(2) may receive compensation at a rate fixed 
by the Administrator for Federal Procurement Policy, but not to exceed 
the daily equivalent of the rate for level V of the Executive Schedule 
for each day (including travel time) in which the individual is properly 
engaged in the actual performance of duties under this chapter. 
(4) TRAVEL EXPENSES.—While serving away from home or regular 
place of business, Board members and other individuals serving on an 
intermittent basis under this chapter shall be allowed travel expenses 
in accordance with section 5703 of title 5. 
§ 1502. Cost accounting standards 
(a) AUTHORITY.—
(1) COST ACCOUNTING STANDARDS BOARD.—The Cost Accounting 
Standards Board has exclusive authority to prescribe, amend, and re-
scind cost accounting standards, and interpretations of the standards,
designed to achieve uniformity in the cost accounting standards gov-
erning measurement, assignment, and allocation of costs to contracts 
with the Federal Government. 
(2) ADMINISTRATOR
FOR
FEDERAL
PROCUREMENT
POLICY.—The 
Administrator for Federal Procurement Policy, after consultation with 
the Board, shall prescribe rules and procedures governing actions of 
the Board under this chapter. The rules and procedures shall require 
that any action to prescribe, amend, or rescind a standard or interpre-
tation be approved by majority vote of the Board. 
(b) MANDATORY USE OF STANDARDS.—
(1) SUBCONTRACT.—
(A) DEFINITION.—In this paragraph, ‘‘subcontract’’ includes a 
transfer of commercial items between divisions, subsidiaries, or af-
filiates of a contractor or subcontractor. 
(B) WHEN STANDARDS ARE TO BE USED.—Cost accounting 
standards prescribed under this chapter are mandatory for use by 
all executive agencies and by contractors and subcontractors in es-
timating, accumulating, and reporting costs in connection with the 
pricing and administration of, and settlement of disputes con-
cerning, all negotiated prime contract and subcontract procure-
ments with the Federal Government in excess of $500,000. 
(C) NONAPPLICATION OF STANDARDS.—Subparagraph (B) does 
not apply to—
(i) a contract or subcontract for the acquisition of a com-
mercial item; 
(ii) a contract or subcontract where the price negotiated is 
based on a price set by law or regulation; 
(iii) a firm, fixed-price contract or subcontract awarded on 
the basis of adequate price competition without submission of 
certified cost or pricing data; or 
(iv) a contract or subcontract with a value of less than 
$7,500,000 if, when the contract or subcontract is entered 
into, the segment of the contractor or subcontractor that will 
perform the work has not been awarded at least one contract
or subcontract with a value of more than $7,500,000 that is 
covered by the standards. 
(2) EXEMPTIONS AND WAIVERS BY BOARD.—The Board may—
(A) exempt classes of contractors and subcontractors from the 
requirements of this chapter; and 
(B) establish procedures for the waiver of the requirements of 
this chapter for individual contracts and subcontracts.
(3) WAIVER BY HEAD OF EXECUTIVE AGENCY.—
(A) IN GENERAL.—The head of an executive agency may waive 
the applicability of the cost accounting standards for a contract 
or subcontract with a value of less than $15,000,000 if that offi-
cial determines in writing that the segment of the contractor or 
subcontractor that will perform the work—
(i) is primarily engaged in the sale of commercial items; 
and 
(ii) would not otherwise be subject to the cost accounting 
standards under this section. 
(B) IN EXCEPTIONAL CIRCUMSTANCES.—The head of an execu-
tive agency may waive the applicability of the cost accounting 
standards for a contract or subcontract under exceptional cir-
cumstances when necessary to meet the needs of the agency. A de-
termination to waive the applicability of the standards under this 
subparagraph shall be set forth in writing and shall include a 
statement of the circumstances justifying the waiver. 
(C) RESTRICTION ON DELEGATION OF AUTHORITY.—The head 
of an executive agency may not delegate the authority under sub-
paragraph (A) or (B) to an official in the executive agency below 
the senior policymaking level in the executive agency. 
(D) CONTENTS OF FEDERAL ACQUISITION REGULATION.—The 
Federal Acquisition Regulation shall include—
(i) criteria for selecting an official to be delegated authority 
to grant waivers under subparagraph (A) or (B); and 
(ii) the specific circumstances under which the waiver may 
be granted. 
(E) REPORT.—The head of each executive agency shall report 
the waivers granted under subparagraphs (A) and (B) for that 
agency to the Board on an annual basis. 
(c) REQUIRED BOARD ACTION FOR PRESCRIBING STANDARDS AND IN-
TERPRETATIONS.—Before prescribing cost accounting standards and inter-
pretations, the Board shall—
(1) take into account, after consultation and discussions with the 
Comptroller General, professional accounting organizations, contrac-
tors, and other interested parties—
(A) the probable costs of implementation, including any infla-
tionary effects, compared to the probable benefits; 
(B) the advantages, disadvantages, and improvements antici-
pated in the pricing and administration of, and settlement of dis-
putes concerning, contracts; and
(C) the scope of, and alternatives available to, the action pro-
posed to be taken; 
(2) prepare and publish a report in the Federal Register on the 
issues reviewed under clause (1); 
(3)(A) publish an advanced notice of proposed rulemaking in the 
Federal Register to solicit comments on the report prepared under 
clause (2); 
(B) provide all parties affected at least 60 days after publication to 
submit their views and comments; and 
(C) during the 60-day period, consult with the Comptroller General 
and consider any recommendation the Comptroller General may make; 
and 
(4) publish a notice of proposed rulemaking in the Federal Register 
and provide all parties affected at least 60 days after publication to 
submit their views and comments. 
(d) EFFECTIVE DATE.—Rules, regulations, cost accounting standards, 
and modifications of rules, regulations, and standards prescribed or amend-
ed under this chapter have the full force and effect of law and become effec-
tive within 120 days after publication in the Federal Register in final form, 
unless the Board determines that a longer period is necessary. The Board 
shall determine implementation dates for contractors and subcontractors. 
The date may not be later than the beginning of the second fiscal year of 
the contractor or subcontractor after the standard becomes effective. 
(e) ACCOMPANYING
MATERIAL.—Rules, regulations, cost accounting 
standards, and modifications prescribed or amended under this chapter shall 
be accompanied by prefatory comments and by illustrations, if necessary. 
(f) IMPLEMENTING REGULATIONS.—The Board shall prescribe regula-
tions for the implementation of cost accounting standards prescribed or in-
terpreted under this section. The regulations shall be incorporated into the 
Federal Acquisition Regulation and shall require contractors and sub-
contractors as a condition of contracting with the Government to—
(1) disclose in writing their cost accounting practices, including 
methods of distinguishing direct costs from indirect costs and the basis 
used for allocating indirect costs; and 
(2) agree to a contract price adjustment, with interest, for any in-
creased costs the Government pays the contractor or subcontractor be-
cause of a change in the contractor’s or subcontractor’s cost accounting 
practices or a failure by the contractor or subcontractor to comply with 
applicable cost accounting standards.
(g) NONAPPLICABILITY OF CERTAIN SECTIONS OF TITLE 5.—Functions 
exercised under this section are not subject to sections 551, 553–559, and 
701–706 of title 5. 
§ 1503. Contract price adjustment 
(a) DISAGREEMENT CONSTITUTES A DISPUTE.—If the Federal Govern-
ment and a contractor or subcontractor fail to agree on a contract price ad-
justment, including whether the contractor or subcontractor has complied 
with the applicable cost accounting standards, the disagreement will con-
stitute a dispute under chapter 69 of this title. 
(b) AMOUNT OF ADJUSTMENT.—A contract price adjustment undertaken 
under section 1502(f)(2) of this title shall be made, where applicable, on 
relevant contracts between the Government and the contractor that are sub-
ject to the cost accounting standards so as to protect the Government from 
payment, in the aggregate, of increased costs, as defined by the Cost Ac-
counting Standards Board. The Government may not recover costs greater 
than the aggregate increased cost to the Government on the relevant con-
tracts subject to the price adjustment unless the contractor made a change 
in its cost accounting practices of which it was aware or should have been 
aware at the time of the price negotiation and which it failed to disclose 
to the Government. 
(c) INTEREST.—The interest rate applicable to a contract price adjust-
ment is the annual rate of interest established under section 6621 of the 
Internal Revenue Code of 1986 (26 U.S.C. 6621) for the period. Interest 
accrues from the time payments of the increased costs were made to the 
contractor or subcontractor to the time the Government receives full com-
pensation for the price adjustment. 
§ 1504. Effect on other standards and regulations 
(a) PREVIOUSLY EXISTING STANDARDS.—All cost accounting standards, 
waivers, exemptions, interpretations, modifications, rules, and regulations 
prescribed by the Cost Accounting Standards Board under section 719 of 
the Defense Production Act of 1950 (50 App. U.S.C. 2168)—
(1) remain in effect until amended, superseded, or rescinded by the 
Board under this chapter; and
(2) are subject to this chapter in the same manner as if prescribed 
by the Board under this chapter. 
(b) INCONSISTENT AGENCY REGULATIONS.—To ensure that a regulation 
or proposed regulation of an executive agency is not inconsistent with a cost 
accounting standard prescribed or amended under this chapter, the Admin-
istrator for Federal Procurement Policy, under the authority in sections 
1121, 1122(a)–(c)(1), 1125, 1126, 1130, 1131, and 2304 of this title, shall 
rescind or deny the promulgation of the inconsistent regulation or proposed
regulation and take other appropriate action authorized under sections 
1121, 1122(a)–(c)(1), 1125, 1126, 1130, 1131, and 2304. 
(c) COSTS NOT SUBJECT TO DIFFERENT STANDARDS.—Costs that are 
the subject of cost accounting standards prescribed under this chapter are 
not subject to regulations established by another executive agency that dif-
fer from those standards with respect to the measurement, assignment, and 
allocation of those costs. 
§ 1505. Examinations 
To determine whether a contractor or subcontractor has complied with 
cost accounting standards prescribed under this chapter and has followed 
consistently the contractor’s or subcontractor’s disclosed cost accounting 
practices, an authorized representative of the head of the agency concerned, 
of the offices of inspector general established under the Inspector General 
Act of 1978 (5 App. U.S.C.), or of the Comptroller General may examine 
and copy documents, papers, or records of the contractor or subcontractor 
relating to compliance with the standards. 
§ 1506. Authorization of appropriations 
Necessary amounts may be appropriated to carry out this chapter. 
CHAPTER 17—AGENCY RESPONSIBILITIES AND 
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.
§ 1701. Cooperation with the Administrator 
On the request of the Administrator for Federal Procurement Policy, 
each executive agency shall—
(1) make its services, personnel, and facilities available to the Office 
of Federal Procurement Policy to the greatest practicable extent for the 
performance of functions under this part; and 
(2) except when prohibited by law, furnish to the Administrator, and 
give the Administrator access to, all information and records the Office 
possesses that the Administrator may determine to be necessary for the 
performance of the functions of the Office.
§ 1702. Chief Acquisition Officers and senior procurement 
executives 
(a) APPOINTMENT OR DESIGNATION OF CHIEF ACQUISITION OFFICER.—
The head of each executive agency described in section 901(b)(1) (other 
than the Department of Defense) or 901(b)(2)(C) of title 31 with a Chief 
Financial Officer appointed or designated under section 901(a) of title 31 
shall appoint or designate a non-career employee as Chief Acquisition Offi-
cer for the agency. 
(b) AUTHORITY AND FUNCTIONS OF CHIEF ACQUISITION OFFICER.—
(1) PRIMARY DUTY.—The primary duty of the Chief Acquisition Of-
ficer is acquisition management. 
(2) ADVICE AND ASSISTANCE.—The Chief Acquisition Officer shall 
advise and assist the head of the executive agency and other agency 
officials to ensure that the mission of the executive agency is achieved 
through the management of the agency’s acquisition activities. 
(3) OTHER FUNCTIONS.—The functions of each Chief Acquisition 
Officer include—
(A) monitoring the performance of acquisition activities and ac-
quisition programs of the executive agency, evaluating the per-
formance of those programs on the basis of applicable performance 
measurements, and advising the head of the executive agency re-
garding the appropriate business strategy to achieve the mission 
of the executive agency; 
(B) increasing the use of full and open competition in the acqui-
sition of property and services by the executive agency by estab-
lishing policies, procedures, and practices that ensure that the ex-
ecutive agency receives a sufficient number of sealed bids or com-
petitive proposals from responsible sources to fulfill the Federal 
Government’s requirements (including performance and delivery 
schedules) at the lowest cost or best value considering the nature 
of the property or service procured; 
(C) increasing appropriate use of performance-based contracting 
and performance specifications; 
(D) making acquisition decisions consistent with all applicable 
laws and establishing clear lines of authority, accountability, and 
responsibility for acquisition decisionmaking within the executive 
agency; 
(E) managing the direction of acquisition policy for the execu-
tive agency, including implementation of the unique acquisition 
policies, regulations, and standards of the executive agency;
(F) developing and maintaining an acquisition career manage-
ment program in the executive agency to ensure that there is an 
adequate professional workforce; and 
(G) as part of the strategic planning and performance evalua-
tion process required under section 306 of title 5 and sections 
1105(a)(28), 1115, 1116, and 9703 of title 31—
(i) assessing the requirements established for agency per-
sonnel regarding knowledge and skill in acquisition resources 
management and the adequacy of those requirements for fa-
cilitating the achievement of the performance goals estab-
lished for acquisition management; 
(ii) developing strategies and specific plans for hiring, 
training, and professional development to rectify a deficiency 
in meeting those requirements; and 
(iii) reporting to the head of the executive agency on the 
progress made in improving acquisition management capa-
bility. 
(c) SENIOR PROCUREMENT EXECUTIVE.—
(1) DESIGNATION.—The head of each executive agency shall des-
ignate a senior procurement executive. 
(2) RESPONSIBILITY.—The senior procurement executive is respon-
sible for management direction of the procurement system of the execu-
tive agency, including implementation of the unique procurement poli-
cies, regulations, and standards of the executive agency. 
(3) WHEN
CHIEF
ACQUISITION
OFFICER
APPOINTED
OR
DES-
IGNATED.—For an executive agency for which a Chief Acquisition Offi-
cer has been appointed or designated under subsection (a), the head 
of the executive agency shall—
(A) designate the Chief Acquisition Officer as the senior pro-
curement executive for the executive agency; or 
(B) ensure that the senior procurement executive designated 
under paragraph (1) reports directly to the Chief Acquisition Offi-
cer without intervening authority.
§ 1703. Acquisition workforce 
(a) DESCRIPTION.—For purposes of this section, the acquisition work-
force of an agency consists of all employees serving in acquisition positions 
listed in subsection (g)(1)(A). 
(b) APPLICABILITY.—
(1) NONAPPLICABILITY TO CERTAIN EXECUTIVE AGENCIES.—This 
section does not apply to an executive agency that is subject to chapter 
87 of title 10.
(2) APPLICABILITY OF PROGRAMS.—The programs established by 
this section apply to the acquisition workforce of each executive agency. 
(c) MANAGEMENT POLICIES.—
(1) DUTIES OF HEAD OF EXECUTIVE AGENCY.—
(A) ESTABLISH POLICIES AND PROCEDURES.—After consulta-
tion with the Administrator for Federal Procurement Policy, the 
head of each executive agency shall establish policies and proce-
dures for the effective management (including accession, edu-
cation, training, career development, and performance incentives) 
of the acquisition workforce of the agency. The development of ac-
quisition workforce policies under this section shall be carried out 
consistent with the merit system principles set forth in section 
2301(b) of title 5. 
(B) ENSURE UNIFORM IMPLEMENTATION.—The head of each 
executive agency shall ensure that, to the maximum extent prac-
ticable, acquisition workforce policies and procedures established 
are uniform in their implementation throughout the agency. 
(2) DUTIES
OF
ADMINISTRATOR.—The Administrator shall issue 
policies to promote uniform implementation of this section by executive 
agencies, with due regard for differences in program requirements 
among agencies that may be appropriate and warranted in view of the 
agency mission. The Administrator shall coordinate with the Deputy 
Director for Management of the Office of Management and Budget to 
ensure that the policies are consistent with the policies and procedures 
established, and enhanced system of incentives provided, pursuant to 
section 5051(c) of the Federal Acquisition Streamlining Act of 1994 
(Public Law 103–355, 108 Stat. 3351). The Administrator shall evalu-
ate the implementation of this section by executive agencies. 
(d) AUTHORITY AND RESPONSIBILITY OF SENIOR PROCUREMENT EXEC-
UTIVE.—Subject to the authority, direction, and control of the head of an 
executive agency, the senior procurement executive of the agency shall carry 
out all powers, functions, and duties of the head of the agency with respect 
to implementing this section. The senior procurement executive shall ensure 
that the policies of the head of the executive agency established in accord-
ance with this section are implemented throughout the agency. 
(e) COLLECTING AND MAINTAINING INFORMATION.—The Administrator 
shall ensure that the heads of executive agencies collect and maintain stand-
ardized information on the acquisition workforce related to implementing 
this section. To the maximum extent practicable, information requirements 
shall conform to standards the Director of the Office of Personnel Manage-
ment establishes for the Central Personnel Data File.
(f) CAREER DEVELOPMENT.—
(1) CAREER PATHS.—
(A) IDENTIFICATION.—The head of each executive agency shall 
ensure that appropriate career paths for personnel who desire to 
pursue careers in acquisition are identified in terms of the edu-
cation, training, experience, and assignments necessary for career 
progression to the most senior acquisition positions. The head of 
each executive agency shall make available information on those 
career paths. 
(B) CRITICAL DUTIES AND TASKS.—For each career path, the 
head of each executive agency shall identify the critical acquisition-
related duties and tasks in which, at minimum, employees of the 
agency in the career path shall be competent to perform at full 
performance grade levels. For this purpose, the head of the execu-
tive agency shall provide appropriate coverage of the critical duties 
and tasks identified by the Director of the Federal Acquisition In-
stitute. 
(C) MANDATORY TRAINING AND EDUCATION.—For each career 
path, the head of each executive agency shall establish require-
ments for the completion of course work and related on-the-job 
training in the critical acquisition-related duties and tasks of the 
career path. The head of each executive agency also shall encour-
age employees to maintain the currency of their acquisition knowl-
edge and generally enhance their knowledge of related acquisition 
management disciplines through academic programs and other 
self-developmental activities. 
(2) PERFORMANCE INCENTIVES.—The head of each executive agency 
shall provide for an enhanced system of incentives to encourage excel-
lence in the acquisition workforce that rewards performance of employ-
ees who contribute to achieving the agency’s performance goals. The 
system of incentives shall include provisions that—
(A) relate pay to performance (including the extent to which the 
performance of personnel in the workforce contributes to achieving 
the cost goals, schedule goals, and performance goals established 
for acquisition programs pursuant to section 3104(b) of this title); 
and 
(B) provide for consideration, in personnel evaluations and pro-
motion decisions, of the extent to which the performance of per-
sonnel in the workforce contributes to achieving the cost goals, 
schedule goals, and performance goals. 
(g) QUALIFICATION REQUIREMENTS.—
(1) IN
GENERAL.—Subject to paragraph (2), the Administrator 
shall—
(A) establish qualification requirements, including education re-
quirements, for—
(i) entry-level positions in the General Schedule Con-
tracting series (GS–1102); 
(ii) senior positions in the General Schedule Contracting 
series (GS–1102); 
(iii) all positions in the General Schedule Purchasing series 
(GS–1105); and 
(iv) positions in other General Schedule series in which sig-
nificant acquisition-related functions are performed; and 
(B) prescribe the manner and extent to which the requirements 
shall apply to an individual serving in a position described in sub-
paragraph (A) at the time the requirements are established. 
(2) RELATIONSHIP TO REQUIREMENTS APPLICABLE TO DEFENSE AC-
QUISITION WORKFORCE.—The Administrator shall establish qualifica-
tion requirements and make prescriptions under paragraph (1) that are 
comparable to those established for the same or equivalent positions 
pursuant to chapter 87 of title 10 with appropriate modifications. 
(3) APPROVAL OF REQUIREMENTS.—The Administrator shall submit 
any requirement established or prescription made under paragraph (1) 
to the Director of the Office of Personnel Management for approval. 
The Director is deemed to have approved the requirement or prescrip-
tion if the Director does not disapprove the requirement or prescription 
within 30 days after receiving it. 
(h) EDUCATION AND TRAINING.—
(1) FUNDING LEVELS.—The head of an executive agency shall set 
forth separately the funding levels requested for educating and training 
the acquisition workforce in the budget justification documents sub-
mitted in support of the President’s budget submitted to Congress 
under section 1105 of title 31.
(2) TUITION ASSISTANCE.—The head of an executive agency may 
provide tuition reimbursement in education (including a full-time 
course of study leading to a degree) in accordance with section 4107 
of title 5 for personnel serving in acquisition positions in the agency. 
(3) RESTRICTED OBLIGATION.—Amounts appropriated for education 
and training under this section may not be obligated for another pur-
pose. 
(i) TRAINING FUND.—
(1) PURPOSES.—The purposes of this subsection are to ensure that 
the Federal acquisition workforce—
(A) adapts to fundamental changes in the nature of Federal 
Government acquisition of property and services associated with 
the changing roles of the Government; and 
(B) acquires new skills and a new perspective to enable it to 
contribute effectively in the changing environment of the 21st cen-
tury. 
(2) ESTABLISHMENT AND MANAGEMENT OF FUND.—There is an ac-
quisition workforce training fund. The Administrator of General Serv-
ices manages the fund through the Federal Acquisition Institute to 
support the training of the acquisition workforce of the executive agen-
cies other than the Department of Defense. The Administrator of Gen-
eral Services shall consult with the Administrator for Federal Procure-
ment Policy in managing the fund. 
(3) CREDITS TO FUND.—Five percent of the fees collected by execu-
tive agencies (other than the Department of Defense) under the fol-
lowing contracts shall be credited to the fund: 
(A) Governmentwide task and delivery-order contracts entered 
into under sections 4103 and 4105 of this title. 
(B) Governmentwide contracts for the acquisition of information 
technology as defined in section 11101 of title 40 and multiagency 
acquisition contracts for that technology authorized by section 
11314 of title 40. 
(C) multiple-award schedule contracts entered into by the Ad-
ministrator of General Services. 
(4) REMITTANCE BY HEAD OF EXECUTIVE AGENCY.—The head of an 
executive agency that administers a contract described in paragraph (3) 
shall remit to the General Services Administration the amount required 
to be credited to the fund with respect to the contract at the end of 
each quarter of the fiscal year. 
(5) AMOUNTS NOT TO BE USED FOR OTHER PURPOSES.—The Ad-
ministrator of General Services, through the Office of Federal Acquisi-
tion Policy, shall ensure that amounts collected for training under this 
subsection are not used for a purpose other than the purpose specified 
in paragraph (1). 
(6) AMOUNTS ARE IN ADDITION TO OTHER AMOUNTS FOR EDU-
CATION AND TRAINING.—Amounts credited to the fund are in addition 
to amounts requested and appropriated for education and training re-
ferred to in subsection (h)(1).
(7) AVAILABILITY OF AMOUNTS.—Amounts credited to the fund re-
main available to be expended only in the fiscal year for which they 
are credited and the two succeeding fiscal years. 
(8) EXCEPTION.—This subsection does not apply to the acquisition 
workforce of the Department of Defense. Fees charged to the Depart-
ment of Defense under contracts covered by this subsection shall be re-
duced by five percent to reflect the Department’s nonparticipation in 
the fund. 
(9) EXPIRATION.—This subsection ceases to be effective five years 
after November 24, 2003. 
(j) RECRUITMENT PROGRAM.—
(1) SHORTAGE
CATEGORY
POSITIONS.—For purposes of sections 
3304, 5333, and 5753 of title 5, the head of a department or agency 
of the Federal Government (other than the Secretary of Defense) may 
determine, under regulations prescribed by the Office of Personnel 
Management, that certain Federal acquisition positions (as described in 
subsection (g)(1)(A)) are shortage category positions in order to use 
the authorities in those sections to recruit and appoint highly qualified 
individuals directly to those positions in the department or agency. 
(2) REPORT.—Not later than March 31, 2007, the Director of the 
Office of Personnel Management, in consultation with the Adminis-
trator for Federal Procurement Policy, shall submit to Congress a re-
port on the implementation of this subsection. The report shall in-
clude—
(A) a list of the departments and agencies that exercised the au-
thority provided in this subsection and whether the exercise of the 
authority was carried out in accordance with the regulations of the 
Office; 
(B) the Director’s assessment of the efficacy of the exercise of 
the authority provided in this subsection in attracting employees 
with unusually high qualifications to the acquisition workforce; 
and 
(C) recommendations the Director considers appropriate on 
whether the authority to carry out the program should be ex-
tended. 
(3) TERMINATION OF AUTHORITY.—The head of a department or 
agency may not appoint an individual to a position of employment 
under this subsection after September 30, 2007. 
§ 1704. Advocates for competition 
(a) ESTABLISHMENT AND DESIGNATION.—
(1) ESTABLISHMENT.—Each executive agency shall have an advocate 
for competition. 
(2) DESIGNATION.—The head of each executive agency shall—
(A) designate for the executive agency and for each procuring 
activity of the executive agency one officer or employee serving in 
a position authorized for the executive agency on July 18, 1984 
(other than the senior procurement executive designated pursuant 
to section 1702(c) of this title) to serve as the advocate for com-
petition; 
(B) not assign those officers or employees duties or responsibil-
ities that are inconsistent with the duties and responsibilities of 
the advocates for competition; and 
(C) provide those officers or employees with the staff or assist-
ance necessary to carry out the duties and responsibilities of the 
advocate for competition, such as individuals who are specialists 
in engineering, technical operations, contract administration, fi-
nancial management, supply management, and utilization of small 
and disadvantaged business concerns. 
(b) DUTIES AND FUNCTIONS.—The advocate for competition of an execu-
tive agency—
(1) is responsible for challenging barriers to, and promoting full and 
open competition in, the procurement of property and services by the 
executive agency; 
(2) shall review the procurement activities of the executive agency; 
(3) shall identify and report to the senior procurement executive of 
the executive agency—
(A) opportunities and actions taken to achieve full and open 
competition in the procurement activities of the executive agency; 
and 
(B) a condition or action which has the effect of unnecessarily 
restricting competition in the procurement actions of the executive 
agency;
(4) shall prepare and transmit to the senior procurement executive 
an annual report describing—
(A) the advocate’s activities under this section; 
(B) new initiatives required to increase competition; and 
(C) remaining barriers to full and open competition; 
(5) shall recommend to the senior procurement executive—
(A) goals and the plans for increasing competition on a fiscal 
year basis; and
(B) a system of personal and organizational accountability for 
competition, which may include the use of recognition and awards 
to motivate program managers, contracting officers, and others in 
authority to promote competition in procurement programs; and 
(6) shall describe other ways in which the executive agency has em-
phasized competition in programs for procurement training and re-
search. 
(c) RESPONSIBILITIES.—The advocate for competition for each procuring 
activity is responsible for promoting full and open competition, promoting 
the acquisition of commercial items, and challenging barriers to acquisition, 
including unnecessarily restrictive statements of need, unnecessarily detailed 
specifications, and unnecessarily burdensome contract clauses. 
§ 1705. Personnel evaluation 
The head of each executive agency subject to part C of this subtitle shall 
ensure, with respect to the employees of that agency whose primary duties 
and responsibilities pertain to the award of contracts subject to the provi-
sions of the Small Business and Federal Procurement Competition En-
hancement Act of 1984 (Public Law 98–577, 98 Stat. 3066), that the per-
formance appraisal system applicable to those employees affords appropriate 
recognition to, among other factors, efforts to—
(1) increase competition and achieve cost savings through the elimi-
nation of procedures that unnecessarily inhibit full and open competi-
tion; 
(2) further the purposes of the Small Business and Federal Procure-
ment Competition Enhancement Act of 1984 (Public Law 98–577, 98 
Stat. 3066) and the Defense Procurement Reform Act of 1984 (Public 
Law 98–525, 98 Stat. 2588); and 
(3) further other objectives and purposes of the Federal acquisition 
system authorized by law. 
§ 1706. Publication of proposed regulations 
(a) COVERED POLICIES, REGULATIONS, PROCEDURES, AND FORMS.—
(1) REQUIRED COMMENT PERIOD.—Except as provided in subsection 
(d), a procurement policy, regulation, procedure, or form (including an 
amendment or modification to a policy, regulation, procedure, or form) 
may not take effect until 60 days after it is published for public com-
ment in the Federal Register pursuant to subsection (b) if it—
(A) relates to the expenditure of appropriated amounts; and 
(B)(i) has a significant effect beyond the internal operating pro-
cedures of the agency issuing the policy, regulation, procedure, or 
form; or
(ii) has a significant cost or administrative impact on contrac-
tors or offerors. 
(2) EXCEPTION.—A policy, regulation, procedure, or form may take 
effect earlier than 60 days after the publication date when there are 
compelling circumstances for the earlier effective date, but the effective 
date may not be less than 30 days after the publication date. 
(b) PUBLICATION IN FEDERAL REGISTER AND COMMENT PERIOD.—Sub-
ject to subsection (c), the head of the agency shall have published in the 
Federal Register a notice of the proposed procurement policy, regulation, 
procedure, or form and provide for a public comment period for receiving 
and considering the views of all interested parties on the proposal. The 
length of the comment period may not be less than 30 days. 
(c) CONTENTS OF NOTICE.—Notice of a proposed procurement policy, 
regulation, procedure, or form prepared for publication in the Federal Reg-
ister shall include—
(1) the text of the proposal or, if it is impracticable to publish the 
full text of the proposal, a summary of the proposal and a statement 
specifying the name, address, and telephone number of the officer or 
employee of the executive agency from whom the full text may be ob-
tained; and 
(2) a request for interested parties to submit comments on the pro-
posal and the name and address of the officer or employee of the Gov-
ernment designated to receive the comments. 
(d) WAIVER.—The requirements of subsections (a) and (b) may be waived 
by the officer authorized to issue a procurement policy, regulation, proce-
dure, or form if urgent and compelling circumstances make compliance with 
the requirements impracticable. 
(e) EFFECTIVENESS OF POLICY, REGULATION, PROCEDURE, OR FORM.—
(1) TEMPORARY BASIS.—A procurement policy, regulation, proce-
dure, or form for which the requirements of subsections (a) and (b) 
are waived under subsection (d) is effective on a temporary basis if—
(A) a notice of the policy, regulation, procedure, or form is pub-
lished in the Federal Register and includes a statement that the 
policy, regulation, procedure, or form is temporary; and 
(B) provision is made for a public comment period of 30 days 
beginning on the date on which the notice is published. 
(2) FINAL POLICY, REGULATION, PROCEDURE, OR FORM.—After con-
sidering the comments received, the head of the agency waiving the re-
quirements of subsections (a) and (b) under subsection (d) may issue 
the final procurement policy, regulation, procedure, or form.
§ 1707. Procurement notice 
(a) NOTICE REQUIREMENT.—Except as provided in subsection (b)—
(1) an executive agency intending to solicit bids or proposals for a 
contract for property or services for a price expected to exceed 
$10,000, but not to exceed $25,000, shall post, for not less than 10 
days, in a public place at the contracting office issuing the solicitation 
a notice of solicitation described in subsection (c); 
(2) an executive agency shall publish a notice of solicitation described 
in subsection (c) if the agency intends to—
(A) solicit bids or proposals for a contract for property or serv-
ices for a price expected to exceed $25,000; or 
(B) place an order, expected to exceed $25,000, under a basic 
agreement, basic ordering agreement, or similar arrangement; and 
(3) an executive agency awarding a contract for property or services 
for a price exceeding $25,000, or placing an order exceeding $25,000 
under a basic agreement, basic ordering agreement, or similar arrange-
ment, shall furnish for publication by the Secretary of Commerce a no-
tice announcing the award or order if there is likely to be a subcontract 
under the contract or order. 
(b) EXEMPTIONS.—
(1) IN GENERAL.—A notice is not required under subsection (a) if—
(A) the proposed procurement is for an amount not greater 
than the simplified acquisition threshold and is to be conducted 
by—
(i) using widespread electronic public notice of the solicita-
tion in a form that allows convenient and universal user ac-
cess through a single, Federal Government-wide point of 
entry; and 
(ii) permitting the public to respond to the solicitation elec-
tronically; 
(B) the notice would disclose the executive agency’s needs and 
disclosure would compromise national security; 
(C) the proposed procurement would result from acceptance 
of—
(i) an unsolicited proposal that demonstrates a unique and 
innovative research concept and publication of a notice of the 
unsolicited research proposal would disclose the originality of 
thought or innovativeness of the proposal or would disclose 
proprietary information associated with the proposal; or 
(ii) a proposal submitted under section 9 of the Small 
Business Act (15 U.S.C. 638);
(D) the procurement is made against an order placed under a 
requirements contract, a task order contract, or a delivery order 
contract; 
(E) the procurement is made for perishable subsistence supplies; 
(F) the procurement is for utility services, other than tele-
communication services, and only one source is available; 
(G) the procurement is for the services of an expert for use in 
any litigation or dispute (including any reasonably foreseeable liti-
gation or dispute) involving the Government in a trial, hearing, or 
proceeding before a court, administrative tribunal, or agency, or 
in any part of an alternative dispute resolution process, whether 
or not the expert is expected to testify, or 
(H) the procurement is by the Secretary of Homeland Security 
pursuant to the special procedures provided in section 833(c) of 
the Homeland Security Act of 2002 (6 U.S.C. 393(c)). 
(2) CERTAIN
PROCUREMENTS.—The requirements of subsection 
(a)(2) do not apply to a procurement—
(A) under conditions described in paragraph (2), (3), (4), (5), 
or (7) of section 3303(a) of this title or paragraph (2), (3), (4), 
(5), or (7) of section 2304(c) of title 10; or 
(B) for which the head of the executive agency makes a deter-
mination in writing, after consultation with the Administrator for 
Federal Procurement Policy and the Administrator of the Small 
Business Administration, that it is not appropriate or reasonable 
to publish a notice before issuing a solicitation. 
(c) CONTENTS OF NOTICE.—Each notice of solicitation required by clause 
(1) or (2) of subsection (a) shall include—
(1) an accurate description of the property or services to be con-
tracted for, which description—
(A) shall not be unnecessarily restrictive of competition; and 
(B) shall include, as appropriate, the agency nomenclature, Na-
tional Stock Number or other part number and a brief description 
of the item’s form, fit, or function, physical dimensions, and pre-
dominant material of manufacture, or similar information that will 
assist a prospective contractor to make an informed business judg-
ment as to whether a copy of the solicitation should be requested; 
(2) provisions that—
(A)(i) state whether the technical data required to respond to 
the solicitation will not be furnished as part of the solicitation; and 
(ii) identify the source in the Government, if any, from which 
the technical data may be obtained; and
(B)(i) state whether an offeror or its product or service must 
meet a qualification requirement in order to be eligible for award; 
and, if so 
(ii) identify the office from which the qualification requirement 
may be obtained; 
(3) the name, business address, and telephone number of the con-
tracting officer; 
(4) a statement that all responsible sources may submit a bid, pro-
posal, or quotation (as appropriate) that the agency shall consider; 
(5) in the case of a procurement using procedures other than com-
petitive procedures, a statement of the reason justifying the use of 
those procedures and the identity of the intended source; and 
(6) in the case of a contract in an amount estimated to be greater 
than $25,000 but not greater than the simplified acquisition threshold, 
or a contract for the procurement of commercial items using special 
simplified procedures—
(A) a description of the procedures to be used in awarding the 
contract; and 
(B) a statement specifying the periods for prospective offerors 
and the contracting officer to take the necessary preaward and 
award actions. 
(d) PUBLICATION OF NOTICE OF SOLICITATION OR AWARD.—
(1) NOTICE OF SOLICITATION.—
(A) MEANS OF PUBLICATION.—A notice of solicitation required 
to be published under subsection (a) may be published—
(i) by electronic means that meets the requirements for ac-
cessibility under subparagraph (B); or 
(ii) by the Secretary of Commerce in the Commerce Busi-
ness Daily. 
(B) ACCESSIBILITY REQUIREMENTS MET.—A publication of a 
notice of solicitation by electronic means meets the requirements 
for accessibility if the notice is electronically accessible in a form 
that allows convenient and universal user access through the single 
Government-wide point of entry designated in the Federal Acquisi-
tion Regulation. 
(2) SECRETARY OF COMMERCE.—The Secretary of Commerce shall 
publish promptly in the Commerce Business Daily each notice of solici-
tation of award or order the Secretary receives under paragraph 
(1)(A)(ii) or subsection (a)(3) for publication in the Commerce Busi-
ness Daily. 
(e) TIME LIMITATIONS.—
(1) ISSUING NOTICE OF SOLICITATION AND ESTABLISHING DEAD-
LINE FOR SUBMITTING BIDS AND PROPOSALS.—An executive agency re-
quired by subsection (a)(2) to publish a notice of solicitation may not—
(A) issue the solicitation earlier than 15 days after the date on 
which the notice is published; or 
(B) in the case of a contract or order expected to be greater 
than the simplified acquisition threshold, establish a deadline for 
the submission of all bids or proposals in response to the notice 
required by subsection (a)(2) that—
(i) in the case of a solicitation for research and develop-
ment, is earlier than 45 days after the date the notice re-
quired for a bid or proposal for a contract described in sub-
section (a)(2)(A) is published; 
(ii) in the case of an order under a basic agreement, basic 
ordering agreement, or similar arrangement, is earlier than 
30 days after the date the notice required for an order de-
scribed in subsection (a)(2)(B) is published; or 
(iii) in any other case, is earlier than 30 days after the 
date the solicitation is issued. 
(2) ESTABLISHING
DEADLINE
WHEN
NONE
PROVIDED
BY
STAT-
UTE.—An executive agency shall establish a deadline for the submis-
sion of all bids or proposals in response to a solicitation for which a 
deadline is not provided by statute. Each deadline for the submission 
of offers shall afford potential offerors a reasonable opportunity to re-
spond. 
(3) FLEXIBLE DEADLINES.—The Administrator for Federal Procure-
ment Policy shall prescribe regulations defining limited circumstances 
in which flexible deadlines can be used under paragraph (1) for the 
issuance of solicitations and the submission of bids or proposals for the 
procurement of commercial items. 
(f) CONSIDERATION OF CERTAIN TIMELY RECEIVED OFFERS.—An exec-
utive agency intending to solicit offers for a contract for which a notice of 
solicitation is required to be posted under subsection (a)(1) shall ensure that
contracting officers consider each responsive offer timely received from an 
offeror. 
(g) AVAILABILITY OF COMPLETE SOLICITATION PACKAGE AND PAYMENT 
OF FEE.—An executive agency shall make available to a business concern, 
or the authorized representative of a concern, the complete solicitation pack-
age for any on-going procurement announced pursuant to a notice of solici-
tation under subsection (a) of this section. An executive agency may require
the payment of a fee, not exceeding the actual cost of duplication, for a copy 
of the package. 
§ 1708. Contracting functions performed by Federal per-
sonnel 
(a) COVERED PERSONNEL.—Personnel referred to in subsection (b) are—
(1) an employee, as defined in section 2105 of title 5; 
(2) a member of the armed forces; and 
(3) an individual assigned to a Federal agency pursuant to sub-
chapter VI of chapter 33 of title 5. 
(b) LIMITATION ON PAYMENT FOR ADVISORY AND ASSISTANCE SERV-
ICES.—An executive agency may not pay an individual not described in sub-
section (a) for services to conduct evaluations or analyses of any aspect of 
a proposal submitted for an acquisition unless personnel described in sub-
section (a) with adequate training and capabilities to perform the evalua-
tions and analyses are not readily available in the agency or another Federal 
agency. When administering this subsection, the head of each executive 
agency shall determine in accordance with standards and procedures pre-
scribed in the Federal Acquisition Regulation whether—
(1) a sufficient number of personnel described in subsection (a) in 
the agency or another Federal agency are readily available to perform 
a particular evaluation or analysis for the head of the executive agency 
making the determination; and 
(2) the readily available personnel have the training and capabilities 
necessary to perform the evaluation or analysis. 
(c) CERTAIN RELATIONSHIP NOT AFFECTED.—This section does not af-
fect the relationship between the Federal Government and a Federally fund-
ed research and development center. 
§ 1709. Value engineering 
Each executive agency shall establish and maintain cost-effective proce-
dures and processes for analyzing the functions of a program, project, sys-
tem, product, item of equipment, building, facility, service, or supply of the 
agency. The analysis shall be—
(1) performed by qualified agency or contractor personnel; and 
(2) directed at improving performance, reliability, quality, safety, 
and life cycle costs. 
§ 1710. Record requirements 
(a) MAINTAINING RECORDS ON COMPUTER.—Each executive agency shall 
establish and maintain for five years a computer file, by fiscal year, con-
taining unclassified records of all procurements greater than the simplified 
acquisition threshold in that fiscal year.
(b) CONTENTS.—The record established under subsection (a) shall in-
clude, with respect to each procurement carried out using—
(1) competitive procedures—
(A) the date of contract award; 
(B) information identifying the source to whom the contract was 
awarded; 
(C) the property or services the Federal Government obtains 
under the procurement; and 
(D) the total cost of the procurement; or 
(2) procedures other than competitive procedures—
(A) the information described in subclauses (A)–(D) of clause 
(1); 
(B) the reason under section 3303(a) of this title or section 
2304(c) of title 10 for using the procedures; and 
(C) the identity of the organization or activity that conducted 
the procurement. 
(c) SEPARATE RECORD CATEGORY FOR PROCUREMENTS RESULTING IN 
ONE BID OR PROPOSAL.—Information included in a record pursuant to 
subsection (b)(1) that relates to procurements resulting in the submission 
of a bid or proposal by only one responsible source shall be separately cat-
egorized from the information relating to other procurements included in 
the record. The record of that information shall be designated ‘‘noncompeti-
tive procurements using competitive procedures’’. 
(d) TRANSMISSION AND DATA SYSTEM ENTRY OF INFORMATION.—Infor-
mation included in the record established and maintained under subsection 
(a) shall be transmitted to the Administrator of General Services and shall 
be entered in the Federal Procurement Data System referred to in section 
1122(a)(4) of this title. 
§ 1711. Procurement data 
(a) DEFINITIONS.—In this section—
(1) QUALIFIED HUBZONE SMALL BUSINESS CONCERN.—The term 
‘‘qualified HUBZone small business concern’’ has the meaning given 
that term in section 3(p) of the Small Business Act (15 U.S.C. 
632(p)). 
(2) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY SO-
CIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS.—The term 
‘‘small business concern owned and controlled by socially and economi-
cally disadvantaged individuals’’ has the meaning given that term in 
section 8(d) of the Small Business Act (15 U.S.C. 637(d)). 
(3) SMALL
BUSINESS
CONCERN
OWNED
AND
CONTROLLED
BY 
WOMEN.—The term ‘‘small business concern owned and controlled by
women’’ has the meaning given that term in section 8(d) of the Small 
Business Act (15 U.S.C. 637(d)) and section 204 of the Women’s 
Business Ownership Act of 1988 (Public Law 100–533, 102 Stat. 
9692). 
(b) REPORTING.—Each Federal agency shall report to the Office of Fed-
eral Procurement Policy the number of qualified HUBZone small business 
concerns, the number of small businesses owned and controlled by women, 
and the number of small business concerns owned and controlled by socially 
and economically disadvantaged businesses, by gender, that are first time 
recipients of contracts from the agency. The Office shall take appropriate 
action to ascertain for each fiscal year the number of those small businesses 
that have newly entered the Federal market. 
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 provisions 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.
§ 1901. Simplified acquisition procedures 
(a) WHEN PROCEDURES ARE TO BE USED.—To promote efficiency and 
economy in contracting and to avoid unnecessary burdens for agencies and 
contractors, the Federal Acquisition Regulation shall provide for special 
simplified procedures for purchases of property and services for amounts—
(1) not greater than the simplified acquisition threshold; and 
(2) greater than the simplified acquisition threshold but not greater 
than $5,000,000 with respect to which the contracting officer reason-
ably expects, based on the nature of the property or services sought 
and on market research, that offers will include only commercial items. 
(b) PROHIBITION ON DIVIDING PURCHASES.—A proposed purchase or 
contract for an amount above the simplified acquisition threshold may not 
be divided into several purchases or contracts for lesser amounts to use the 
simplified acquisition procedures required by subsection (a).
(c) PROMOTION OF COMPETITION REQUIRED.—When using simplified ac-
quisition procedures, the head of an executive agency shall promote competi-
tion to the maximum extent practicable. 
(d) CONSIDERATION OF OFFERS TIMELY RECEIVED.—The simplified ac-
quisition procedures contained in the Federal Acquisition Regulation shall 
include a requirement that a contracting officer consider each responsive 
offer timely received from an eligible offeror.
(e) REPORT.—Until October 1, 2004, procuring activities shall continue 
to report under section 1710 of this title procurement awards of at least 
$25,000, but less than $100,000, in conformity with the procedures for the 
reporting of a contract award greater than $25,000 that were in effect on 
October 1, 1992. 
(f) SPECIAL RULES FOR COMMERCIAL ITEMS.—The Federal Acquisition 
Regulation shall provide that an executive agency using special simplified 
procedures to purchase commercial items—
(1) shall publish a notice in accordance with section 1707 of this title 
and, as provided in section 1707(c)(4) of this title, permit all respon-
sible sources to submit a bid, proposal, or quotation (as appropriate) 
that the agency shall consider; 
(2) may not conduct the purchase on a sole source basis unless the 
need to do so is justified in writing and approved in accordance with 
section 2304 of title 10 or sections 3106 and 3301–3304 of this title; 
and 
(3) shall include in the contract file a written description of the pro-
cedures used in awarding the contract and the number of offers re-
ceived. 
§ 1902. Procedures applicable to purchases below micro-pur-
chase threshold 
(a) DEFINITION.—For purposes of this section, the micro-purchase 
threshold is $2,500. 
(b) COMPLIANCE WITH CERTAIN REQUIREMENTS
AND NONAPPLICA-
BILITY OF CERTAIN AUTHORITY.—
(1) COMPLIANCE WITH CERTAIN REQUIREMENTS.—When awarding a 
contract with a price exceeding the micro-purchase threshold, the head 
of each executive agency shall ensure that procuring activities of that 
agency comply with the requirements of section 8(a) of the Small Busi-
ness Act (15 U.S.C. 637(a)), section 2323 of title 10, and section 7102 
of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–
355, 15 U.S.C. 644 note). 
(2) NONAPPLICABILITY
OF
CERTAIN
AUTHORITY.—The authority 
under part 13.106(a)(1) of the Federal Acquisition Regulation (48 
C.F.R. 13.106(a)(1)), as in effect on November 18, 1993, to make pur-
chases without securing competitive quotations does not apply to a pur-
chase with a price exceeding the micro-purchase threshold. 
(c) NONAPPLICABILITY OF CERTAIN PROVISIONS.—An executive agency 
purchase with an anticipated value of the micro-purchase threshold or less 
is not subject to section 15(j) of the Small Business Act (15 U.S.C. 644(j)) 
and chapter 83 of this title.
(d) PURCHASES WITHOUT COMPETITIVE QUOTATIONS.—A purchase not 
greater than $2,500 may be made without obtaining competitive quotations 
if an authorized employee of an executive agency or an authorized member 
of the armed forces determines that the price for the purchase is reasonable. 
(e) EQUITABLE DISTRIBUTION.—Purchases not greater than $2,500 shall 
be distributed equitably among qualified suppliers. 
(f) IMPLEMENTATION THROUGH FEDERAL ACQUISITION REGULATION.—
This section shall be implemented through the Federal Acquisition Regula-
tion. 
§ 1903. Special emergency procurement authority 
(a) APPLICABILITY.—The authorities provided in subsections (b) and (c) 
apply with respect to a procurement of property or services by or for an 
executive agency that the head of the executive agency determines are to 
be used—
(1) in support of a contingency operation (as defined in section 
101(a) of title 10); or 
(2) to facilitate the defense against or recovery from nuclear, biologi-
cal, chemical, or radiological attack against the United States. 
(b) INCREASED THRESHOLDS AND LIMITATION.—For a procurement to 
which this section applies under subsection (a)—
(1) the amount specified in section 1902(a), (d), and (e) shall be 
deemed to be $15,000; 
(2) the term ‘‘simplified acquisition threshold’’ means—
(A) $250,000 in the case of a contract to be awarded and per-
formed, or purchase to be made, in the United States; and 
(B) $500,000 in the case of a contract to be awarded and per-
formed, or purchase to be made, outside the United States; and 
(3) the $5,000,000 limitation in sections 1901(a)(2) and 3304(a)(2) 
of this title and section 2304(g)(1)(B) of title 10 is deemed to be 
$10,000,000. 
(c) AUTHORITY TO TREAT PROPERTY
OR SERVICE
AS COMMERCIAL 
ITEM.—
(1) IN GENERAL.—The head of an executive agency carrying out a 
procurement of property or a service to which this section applies under 
subsection (a)(2) may treat the property or service as a commercial 
item for the purpose of carrying out the procurement. 
(2) CERTAIN CONTRACTS NOT EXEMPT FROM STANDARDS OR RE-
QUIREMENTS.—A contract in an amount of more than $15,000,000 
that is awarded on a sole source basis for an item or service treated 
as a commercial item under paragraph (1) is not exempt from—
(A) cost accounting standards prescribed under section 1502 of 
this title; or 
(B) cost or pricing data requirements (commonly referred to as 
truth in negotiating) under chapter 35 of this title or section 
2306a of title 10. 
§ 1904. Certain transactions for defense against attack 
(a) AUTHORITY.—
(1) IN GENERAL.—The head of an executive agency that engages in 
basic research, applied research, advanced research, and development 
projects that are necessary to the responsibilities of the executive agen-
cy in the field of research and development and have the potential to 
facilitate defense against or recovery from terrorism or nuclear, biologi-
cal, chemical, or radiological attack may exercise the same authority 
(subject to the same restrictions and conditions) with respect to the re-
search and projects as the Secretary of Defense may exercise under 
section 2371 of title 10, except for subsections (b) and (f) of section 
2371. 
(2) PROTOTYPE PROJECTS.—The head of an executive agency, under 
the authority of paragraph (1), may carry out prototype projects that 
meet the requirements of paragraph (1) in accordance with the require-
ments and conditions provided for carrying out prototype projects 
under section 845 of the National Defense Authorization Act for Fiscal 
Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note), including 
that, to the maximum extent practicable, competitive procedures shall 
be used when entering into agreements to carry out projects under sec-
tion 845(a) and that the period of authority to carry out projects under 
section 845(a) terminates as provided in section 845(g) of the Act. 
(3) APPLICATION OF REQUIREMENTS AND CONDITIONS.—In applying 
the requirements and conditions of section 845 of the Act under this 
subsection—
(A) section 845(c) shall apply with respect to prototype projects 
carried out under paragraph (2); and 
(B) the Director of the Office of Management and Budget shall 
perform the functions of the Secretary of Defense under section 
845(d) of the Act.
(4) APPLICABILITY TO SELECTED EXECUTIVE AGENCIES.—
(A) OFFICE OF MANAGEMENT AND BUDGET.—The head of an 
executive agency may exercise authority under this subsection for 
a project only if authorized by the Director.
(B) DEPARTMENT OF HOMELAND SECURITY.—Authority under 
this subsection does not apply to the Secretary of Homeland Secu-
rity while section 391 of title 6 is in effect. 
(b) REGULATIONS.—The Director shall prescribe regulations to carry out 
this section. No transaction may be conducted under the authority of this 
section before the regulations take effect. 
(c) ANNUAL REPORT.—The annual report of the head of an executive 
agency that is required under section 2371(h) of title 10, as applied to the 
head of the executive agency by subsection (a), shall be submitted to the 
Committee on Governmental Affairs of the Senate and the Committee on 
Government Reform of the House of Representatives. 
(d) TERMINATION OF AUTHORITY.—The authority to carry out trans-
actions under subsection (a) terminates on September 30, 2008. 
§ 1905. List of provisions of laws inapplicable to contracts or 
subcontracts not greater than simplified acquisi-
tion threshold 
(a) INCLUSION IN FEDERAL ACQUISITION REGULATION.—
(1) IN GENERAL.—The Federal Acquisition Regulation shall include 
a list of provisions of laws that are inapplicable to contracts or sub-
contracts in amounts not greater than the simplified acquisition thresh-
old. A provision of law properly included on the list pursuant to para-
graph (2) does not apply to contracts or subcontracts in amounts not 
greater than the simplified acquisition threshold that are made by an 
executive agency. This section does not render a provision of law not 
included on the list inapplicable to contracts and subcontracts in 
amounts not greater than the simplified acquisition threshold. 
(2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law 
described in subsection (b) that is enacted after October 13, 1994, shall 
be included on the list of inapplicable provisions of laws required by 
paragraph (1) unless the Federal Acquisition Regulatory Council makes 
a written determination that it would not be in the best interest of the 
Federal Government to exempt contracts or subcontracts in amounts 
not greater than the simplified acquisition threshold from the applica-
bility of the provision. 
(b) COVERED LAW.—A provision of law referred to in subsection (a)(2) 
is a provision of law that the Council determines sets forth policies, proce-
dures, requirements, or restrictions for the procurement of property or serv-
ices by the Government, except for a provision of law that—
(1) provides for criminal or civil penalties; or
(2) specifically refers to this section and provides that, notwith-
standing this section, it shall be applicable to contracts or subcontracts 
in amounts not greater than the simplified acquisition threshold. 
(c) PETITION.—A person may petition the Administrator for Federal Pro-
curement Policy to take appropriate action when a provision of law de-
scribed in subsection (b) is not included on the list of inapplicable provisions 
of law as required by subsection (a) and the Council has not made a written 
determination pursuant to subsection (a)(2). The Administrator shall revise 
the Federal Acquisition Regulation to include the provision on the list of 
inapplicable provisions of law unless the Council makes a determination pur-
suant to subsection (a)(2) within 60 days after the petition is received. 
§ 1906. List of laws inapplicable to procurements of commer-
cial items 
(a) CONTRACTS.—
(1) INCLUSION IN FEDERAL ACQUISITION REGULATION.—The Fed-
eral Acquisition Regulation shall include a list of provisions of law that 
are inapplicable to contracts for the procurement of commercial items. 
A provision of law properly included on the list pursuant to paragraph 
(2) does not apply to purchases of commercial items by an executive 
agency. This section does not render a provision of law not included 
on the list inapplicable to contracts for the procurement of commercial 
items. 
(2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law 
described in subsection (c) that is enacted after October 13, 1994, shall 
be included on the list of inapplicable provisions of law required by 
paragraph (1) unless the Federal Acquisition Regulatory Council makes 
a written determination that it would not be in the best interest of the 
Federal Government to exempt contracts for the procurement of com-
mercial items from the applicability of the provision. 
(b) SUBCONTRACTS.—
(1) DEFINITION.—In this subsection, the term ‘‘subcontract’’ in-
cludes a transfer of commercial items between divisions, subsidiaries, 
or affiliates of a contractor or subcontractor. 
(2) INCLUSION IN FEDERAL ACQUISITION REGULATION.—The Fed-
eral Acquisition Regulation shall include a list of provisions of law that 
are inapplicable to subcontracts under a contract or subcontract for the 
procurement of commercial items. A provision of law properly included 
on the list pursuant to paragraph (3) does not apply to those sub-
contracts. This section does not render a provision of law not included 
on the list inapplicable to subcontracts under a contract for the pro-
curement of commercial items.
(3) PROVISIONS TO BE EXCLUDED FROM LIST.—A provision of law 
described in subsection (c) shall be included on the list of inapplicable 
provisions of law required by paragraph (2) unless the Federal Acquisi-
tion Regulatory Council makes a written determination that it would 
not be in the best interest of the Federal Government to exempt sub-
contracts under a contract for the procurement of commercial items 
from the applicability of the provision. 
(4) WAIVER NOT AUTHORIZED.—This subsection does not authorize 
the waiver of the applicability of any provision of law with respect to 
any subcontract under a contract with a prime contractor reselling or 
distributing commercial items of another contractor without adding 
value. 
(c) COVERED LAW.—A provision of law referred to in subsections (a)(2) 
and (b) is a provision of law that the Council determines sets forth policies, 
procedures, requirements, or restrictions for the procurement of property or 
services by the Government, except for a provision of law that—
(1) provides for criminal or civil penalties; or 
(2) specifically refers to this section and provides that, notwith-
standing this section, it shall be applicable to contracts for the procure-
ment of commercial items. 
(d) PETITION.—A person may petition the Administrator for Federal 
Procurement Policy to take appropriate action when a provision of law de-
scribed in subsection (c) is not included on the list of inapplicable provisions 
of law as required by subsection (a) or (b) and the Council has not made 
a written determination pursuant to subsection (a)(2) or (b)(3). The Admin-
istrator shall revise the Federal Acquisition Regulation to include the provi-
sion on the list of inapplicable provisions of law unless the Council makes 
a determination pursuant to subsection (a)(2) or (b)(3) within 60 days after 
the petition is received. 
§ 1907. List of laws inapplicable to procurements of commer-
cially available off-the-shelf items 
(a) DEFINITION.—As used in this section, the term ‘‘commercially avail-
able off-the-shelf item’’—
(1) means an item that—
(A) is a commercial item (as described in section 103 of this 
title); 
(B) is sold in substantial quantities in the commercial market-
place; and
(C) is offered to the Federal Government, without modification, 
in the same form in which it is sold in the commercial market-
place; but
(2) does not include bulk cargo, as defined in section 3 of the Ship-
ping Act of 1984 (46 App. U.S.C. 1702), such as agricultural products 
and petroleum products. 
(b) INCLUSION IN FEDERAL ACQUISITION REGULATION.—
(1) IN GENERAL.—The Federal Acquisition Regulation shall include 
a list of provisions of law that are inapplicable to contracts for the pro-
curement of commercially available off-the-shelf items. A provision of 
law properly included on the list pursuant to paragraph (2) does not 
apply to contracts for the procurement of commercially available off-
the-shelf items. This section does not render a provision of law not in-
cluded on the list inapplicable to contracts for the procurement of com-
mercially available off-the-shelf items. 
(2) LAWS TO BE INCLUDED.—A provision of law described in sub-
section (c) shall be included on the list of inapplicable provisions of law 
required by paragraph (1) unless the Administrator for Federal Pro-
curement Policy makes a written determination that it would not be 
in the best interest of the Federal Government to exempt contracts for 
the procurement of commercially available off-the-shelf items from the 
applicability of the provision. 
(3) OTHER AUTHORITIES OR RESPONSIBILITIES NOT AFFECTED.—
This section does not modify, supersede, impair, or restrict authorities 
or responsibilities under—
(A) section 15 of the Small Business Act (15 U.S.C. 644); or 
(B) bid protest procedures developed under the authority of—
(i) subchapter V of chapter 35 of title 31; 
(ii) section 2305(e) and (f) of title 10; or 
(iii) sections 3706 and 3707 of this title. 
(c) COVERED LAW.—Except as provided in subsection (b)(3), a provision 
of law referred to in subsection (b)(1) is a provision of law that the Admin-
istrator determines imposes Government-unique policies, procedures, re-
quirements, or restrictions for the procurement of property or services on 
persons whom the Government has awarded contracts for the procurement 
of commercially available off-the-shelf items, except for a provision of law 
that—
(1) provides for criminal or civil penalties; or 
(2) specifically refers to this section and provides that, notwith-
standing this section, it shall be applicable to contracts for the procure-
ment of commercially available off-the-shelf items.
CHAPTER 21—RESTRICTIONS ON OBTAINING AND 
DISCLOSING CERTAIN INFORMATION
Sec. 
2101.
Definitions.
2102.
Prohibitions on disclosing and obtaining procurement information. 
2103.
Actions required of procurement officers when contacted regarding non-Federal em-
ployment. 
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.
§ 2101. Definitions 
In this chapter—
(1) CONTRACTING OFFICER.—The term ‘‘contracting officer’’ means 
an individual who, by appointment in accordance with applicable regu-
lations, may enter into a Federal agency procurement contract on be-
half of the Federal Government and to make determinations and find-
ings with respect to the contract. 
(2) CONTRACTOR BID OR PROPOSAL INFORMATION.—The term ‘‘con-
tractor bid or proposal information’’ means any of the following infor-
mation submitted to a Federal agency as part of, or in connection with, 
a bid or proposal to enter into a Federal agency procurement contract, 
if that information previously has not been made available to the public 
or disclosed publicly: 
(A) Cost or pricing data (as defined in section 2306a(h) of title 
10 with respect to procurements subject to that section and sec-
tion 3501 of this title with respect to procurements subject to that 
section). 
(B) Indirect costs and direct labor rates. 
(C) Proprietary information about manufacturing processes, op-
erations, or techniques marked by the contractor in accordance 
with applicable law or regulation. 
(D) Information marked by the contractor as ‘‘contractor bid or 
proposal information’’, in accordance with applicable law or regu-
lation. 
(3) FEDERAL AGENCY.—The term ‘‘Federal agency’’ has the mean-
ing given the term ‘‘federal agency’’ in section 102 of title 40. 
(4) FEDERAL AGENCY PROCUREMENT.—The term ‘‘Federal agency 
procurement’’ means a Federal agency acquiring goods or services (in-
cluding construction) from non-Federal sources by using competitive 
procedures and appropriated amounts and awarding a contract. 
(5) OFFICIAL.—The term ‘‘official’’ means—
(A) an officer, as defined in section 2104 of title 5; 
(B) an employee, as defined in section 2105 of title 5; and 
(C) a member of the uniformed services, as defined in section 
2101(3) of title 5. 
(6) PROTEST.—The term ‘‘protest’’ means a written objection by an 
interested party to the award or proposed award of a Federal agency
procurement contract, pursuant to subchapter V of chapter 35 of title 
31. 
(7) SOURCE SELECTION INFORMATION.—The term ‘‘source selection 
information’’ means any of the following information prepared for use 
by a Federal agency to evaluate a bid or proposal to enter into a Fed-
eral agency procurement contract, if that information previously has 
not been made available to the public or disclosed publicly: 
(A) Bid prices submitted in response to a Federal agency solici-
tation for sealed bids, or lists of those bid prices before public bid 
opening. 
(B) Proposed costs or prices submitted in response to a Federal 
agency solicitation, or lists of those proposed costs or prices. 
(C) Source selection plans. 
(D) Technical evaluation plans. 
(E) Technical evaluations of proposals. 
(F) Cost or price evaluations of proposals. 
(G) Competitive range determinations that identify proposals 
that have a reasonable chance of being selected for award of a 
contract. 
(H) Rankings of bids, proposals, or competitors. 
(I) Reports and evaluations of source selection panels, boards, 
or advisory councils. 
(J) Other information marked as ‘‘source selection information’’ 
based on a case-by-case determination by the head of the agency, 
the head’s designee, or the contracting officer that its disclosure 
would jeopardize the integrity or successful completion of the Fed-
eral agency procurement to which the information relates. 
§ 2102. Prohibitions on disclosing and obtaining procure-
ment information 
(a) PROHIBITION ON DISCLOSING PROCUREMENT INFORMATION.—
(1) IN GENERAL.—Except as provided by law, an individual de-
scribed in paragraph (3) shall not knowingly disclose contractor bid or 
proposal information or source selection information before the award 
of a Federal agency procurement contract to which the information re-
lates. 
(2) EMPLOYEE OF PRIVATE SECTOR ORGANIZATION.—In addition to 
the restriction in paragraph (1), an employee of a private sector organi-
zation assigned to an agency under chapter 37 of title 5 shall not 
knowingly disclose contractor bid or proposal information or source se-
lection information during the three-year period after the employee’s 
assignment ends, except as provided by law.
(3) APPLICATION.—Paragraph (1) applies to an individual who—
(A)(i) is a present or former official of the Federal Government; 
or 
(ii) is acting or has acted for or on behalf of, or who is advising 
or has advised the Government with respect to, a Federal agency 
procurement; and 
(B) by virtue of that office, employment, or relationship has or 
had access to contractor bid or proposal information or source se-
lection information. 
(b) PROHIBITION ON OBTAINING PROCUREMENT INFORMATION.—Except 
as provided by law, a person shall not knowingly obtain contractor bid or 
proposal information or source selection information before the award of a 
Federal agency procurement contract to which the information relates. 
§ 2103. Actions required of procurement officers when con-
tacted regarding non-Federal employment 
(a) ACTIONS REQUIRED.—An agency official participating personally and 
substantially in a Federal agency procurement for a contract in excess of 
the simplified acquisition threshold who contacts or is contacted by a bidder 
or offeror in that Federal agency procurement regarding possible non-Fed-
eral employment for that official shall—
(1) promptly report the contact in writing to the official’s supervisor 
and to the designated agency ethics official (or designee) of the agency 
in which the official is employed; and 
(2)(A) reject the possibility of non-Federal employment; or 
(B) disqualify himself or herself from further personal and substan-
tial participation in that Federal agency procurement until the agency 
authorizes the official to resume participation in the procurement, in 
accordance with the requirements of section 208 of title 18 and appli-
cable agency regulations on the grounds that—
(i) the person is no longer a bidder or offeror in that Federal 
agency procurement; or 
(ii) all discussions with the bidder or offeror regarding possible 
non-Federal employment have terminated without an agreement or 
arrangement for employment. 
(b) RETENTION OF REPORTS.—The agency shall retain each report re-
quired by this section for not less than two years following the submission 
of the report. The reports shall be made available to the public on request, 
except that any part of a report that is exempt from the disclosure require-
ments of section 552 of title 5 under section 552(b)(1) may be withheld 
from disclosure to the public.
(c) PERSONS SUBJECT TO PENALTIES.—The following are subject to the 
penalties and administrative actions set forth in section 2105 of this title: 
(1) An official who knowingly fails to comply with the requirements 
of this section. 
(2) A bidder or offeror that engages in employment discussions with 
an official who is subject to the restrictions of this section, knowing 
that the official has not complied with clause (1) or (2) of subsection 
(a). 
§ 2104. Prohibition on former official’s acceptance of com-
pensation from contractor 
(a) PROHIBITION.—A former official of a Federal agency may not accept 
compensation from a contractor as an employee, officer, director, or consult-
ant of the contractor within one year after the official—
(1) served, when the contractor was selected or awarded a contract, 
as the procuring contracting officer, the source selection authority, a 
member of the source selection evaluation board, or the chief of a fi-
nancial or technical evaluation team in a procurement in which that 
contractor was selected for award of a contract in excess of 
$10,000,000; 
(2) served as the program manager, deputy program manager, or ad-
ministrative contracting officer for a contract in excess of $10,000,000 
awarded to that contractor; or 
(3) personally made for the Federal agency a decision to—
(A) award a contract, subcontract, modification of a contract or 
subcontract, or a task order or delivery order in excess of 
$10,000,000 to that contractor; 
(B) establish overhead or other rates applicable to a contract for 
that contractor that is valued in excess of $10,000,000; 
(C) approve issuance of a contract payment in excess of 
$10,000,000 to that contractor; or 
(D) pay or settle a claim in excess of $10,000,000 with that 
contractor. 
(b) WHEN COMPENSATION MAY BE ACCEPTED.—Subsection (a) does not 
prohibit a former official of a Federal agency from accepting compensation 
from a division or affiliate of a contractor that does not produce the same 
or similar products or services as the entity of the contractor that is respon-
sible for the contract referred to in clause (1), (2), or (3) of subsection (a). 
(c) IMPLEMENTING REGULATIONS.—Regulations implementing this sec-
tion shall include procedures for an official or former official of a Federal 
agency to request advice from the appropriate designated agency ethics offi-
cial regarding whether the official or former official is or would be precluded 
by this section from accepting compensation from a particular contractor. 
(d) PERSONS SUBJECT TO PENALTIES.—The following are subject to the 
penalties and administrative actions set forth in section 2105 of this title: 
(1) A former official who knowingly accepts compensation in viola-
tion of this section. 
(2) A contractor that provides compensation to a former official 
knowing that the official accepts the compensation in violation of this 
section. 
§ 2105. Penalties and administrative actions 
(a) CRIMINAL PENALTIES.—A person that violates section 2102 of this 
title to exchange information covered by section 2102 for anything of value 
or to obtain or give a person a competitive advantage in the award of a 
Federal agency procurement contract shall be fined as provided under title 
18, imprisoned for not more than five years, or both. 
(b) CIVIL PENALTIES.—The Attorney General may bring a civil action in 
an appropriate district court of the United States against a person that vio-
lates section 2102, 2103, or 2104 of this title. On proof of the conduct by 
a preponderance of the evidence—
(1) an individual is liable to the Federal Government for a civil pen-
alty of not more than $50,000 for each violation plus twice the amount 
of compensation that the individual received or offered for the prohib-
ited conduct; and 
(2) an organization is liable to the Government for a civil penalty 
of not more than $500,000 for each violation plus twice the amount 
of compensation that the organization received or offered for the pro-
hibited conduct. 
(c) ADMINISTRATIVE ACTIONS.—
(1) TYPES OF ACTION THAT FEDERAL AGENCY MAY TAKE.—A Fed-
eral agency that receives information that a contractor or a person has 
violated section 2102, 2103, or 2104 of this title shall consider taking 
one or more of the following actions, as appropriate: 
(A) Canceling the Federal agency procurement, if a contract has 
not yet been awarded. 
(B) Rescinding a contract with respect to which—
(i) the contractor or someone acting for the contractor has 
been convicted for an offense punishable under subsection (a); 
or
(ii) the head of the agency that awarded the contract has 
determined, based on a preponderance of the evidence, that
the contractor or a person acting for the contractor has en-
gaged in conduct constituting the offense. 
(C) Initiating a suspension or debarment proceeding for the pro-
tection of the Government in accordance with procedures in the 
Federal Acquisition Regulation. 
(D) Initiating an adverse personnel action, pursuant to the pro-
cedures in chapter 75 of title 5 or other applicable law or regula-
tion. 
(2) AMOUNT GOVERNMENT ENTITLED TO RECOVER.—When a Fed-
eral agency rescinds a contract pursuant to paragraph (1)(B), the Gov-
ernment is entitled to recover, in addition to any penalty prescribed by 
law, the amount expended under the contract. 
(3) PRESENT RESPONSIBILITY AFFECTED BY CONDUCT.—For pur-
poses of a suspension or debarment proceeding initiated pursuant to 
paragraph (1)(C), engaging in conduct constituting an offense under 
section 2102, 2103, or 2104 affects the present responsibility of a Gov-
ernment contractor or subcontractor. 
§ 2106. Reporting information believed to constitute evi-
dence of offense 
A person may not file a protest against the award or proposed award of 
a Federal agency procurement contract alleging a violation of section 2102, 
2103, or 2104 of this title, and the Comptroller General may not consider 
that allegation in deciding a protest, unless the person, no later than 14 
days after the person first discovered the possible violation, reported to the 
Federal agency responsible for the procurement the information that the 
person believed constitutes evidence of the offense. 
§ 2107. Savings provisions 
This chapter does not—
(1) restrict the disclosure of information to, or its receipt by, a per-
son or class of persons authorized, in accordance with applicable agency 
regulations or procedures, to receive that information; 
(2) restrict a contractor from disclosing its own bid or proposal in-
formation or the recipient from receiving that information; 
(3) restrict the disclosure or receipt of information relating to a Fed-
eral agency procurement after it has been canceled by the Federal 
agency before contract award unless the Federal agency plans to re-
sume the procurement; 
(4) prohibit individual meetings between a Federal agency official 
and an offeror or potential offeror for, or a recipient of, a contract or 
subcontract under a Federal agency procurement, provided that unau-
thorized disclosure or receipt of contractor bid or proposal information 
or source selection information does not occur; 
(5) authorize the withholding of information from, nor restrict its re-
ceipt by, Congress, a committee or subcommittee of Congress, the 
Comptroller General, a Federal agency, or an inspector general of a 
Federal agency; 
(6) authorize the withholding of information from, nor restrict its re-
ceipt by, the Comptroller General in the course of a protest against the 
award or proposed award of a Federal agency procurement contract; 
or 
(7) limit the applicability of a requirement, sanction, contract pen-
alty, or remedy established under another law or regulation.
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.
§ 2301. Use of electronic commerce in Federal procurement 
(a) DEFINITION.—For the purposes of this section, the term ‘‘electronic 
commerce’’ means electronic techniques for accomplishing business trans-
actions, including electronic mail or messaging, World Wide Web technology, 
electronic bulletin boards, purchase cards, electronic funds transfers, and 
electronic data interchange. 
(b) ESTABLISHMENT, MAINTENANCE, AND USE OF ELECTRONIC COM-
MERCE PROCEDURES AND PROCESSES.—The head of each executive agency, 
after consulting with the Administrator for Federal Procurement Policy, 
shall establish, maintain, and use, to the maximum extent that is practicable 
and cost-effective, procedures and processes that employ electronic com-
merce in the conduct and administration of the procurement system of the 
agency. 
(c) APPLICABLE STANDARDS.—In conducting electronic commerce, the 
head of an executive agency shall apply nationally and internationally recog-
nized standards that broaden interoperability and ease the electronic inter-
change of information. 
(d) REQUIREMENTS OF SYSTEMS, TECHNOLOGIES, PROCEDURES, AND 
PROCESSES.—The head of each executive agency shall ensure that systems, 
technologies, procedures, and processes established pursuant to this sec-
tion—
(1) are implemented with uniformity throughout the agency, to the 
extent practicable; 
(2) are implemented only after granting due consideration to the use 
or partial use, as appropriate, of existing electronic commerce and elec-
tronic data interchange systems and infrastructures such as the Fed-
eral acquisition computer network architecture known as FACNET; 
(3) facilitate access to Federal Government procurement opportuni-
ties, including opportunities for small business concerns, socially and 
economically disadvantaged small business concerns, and business con-
cerns owned predominantly by women; and 
(4) ensure that any notice of agency requirements or agency solicita-
tion for contract opportunities is provided in a form that allows conven-
ient and universal user access through a single, Government-wide point 
of entry. 
(e) IMPLEMENTATION.—In carrying out the requirements of this section, 
the Administrator shall—
(1) issue policies to promote, to the maximum extent practicable, 
uniform implementation of this section by executive agencies, with due 
regard for differences in program requirements among agencies that 
may require departures from uniform procedures and processes in ap-
propriate cases, when warranted because of the agency mission; 
(2) ensure that the head of each executive agency complies with the 
requirements of subsection (d); and 
(3) consult with the heads of appropriate Federal agencies with ap-
plicable technical and functional expertise, including the Office of In-
formation and Regulatory Affairs, the National Institute of Standards 
and Technology, the General Services Administration, and the Depart-
ment of Defense. 
(f) REPORT.—Not later than March 1, 2004, the Administrator shall sub-
mit to Congress a report setting forth in detail the progress made in imple-
menting the requirements of this section. The report shall include the fol-
lowing: 
(1) A strategic plan for the implementation of a Government-wide 
electronic commerce capability. 
(2) An agency-by-agency summary of implementation of the require-
ments of subsection (d), including timetables, as appropriate, address-
ing when individual agencies will come into full compliance.
(3) A specific assessment of compliance with the requirement in sub-
section (d) to provide universal public access through a single, Govern-
ment-wide point of entry.
(4) An agency-by-agency summary of the volume and dollar value of 
transactions that were conducted using electronic commerce methods 
during the previous calendar year. 
(5) A discussion of possible incremental changes to the electronic 
commerce capability referred to in subsection (d)(4) to increase the 
level of government contract information available to the private sector, 
including an assessment of the advisability of including contract award 
information in the electronic commerce functional standard. 
§ 2302. Rights in technical data 
(a) WHERE DEFINED.—The legitimate proprietary interest of the Federal 
Government and of a contractor in technical or other data shall be defined 
in regulations prescribed as part of the Federal Acquisition Regulation. 
(b) GENERAL EXTENT OF REGULATIONS.—
(1) OTHER RIGHTS NOT IMPAIRED.—Regulations prescribed under 
subsection (a) may not impair a right of the Government or of a con-
tractor with respect to a patent or copyright or another right in tech-
nical data otherwise established by law. 
(2) LIMITATION ON REQUIRING DATA BE PROVIDED TO THE GOV-
ERNMENT.—With respect to executive agencies subject to part C of this 
subtitle, regulations prescribed under subsection (a) shall provide that 
the Government may not require a person that has developed a product 
or process offered or to be offered for sale to the public as a condition 
for the Government to procure the product or process, to provide to 
the Government technical data relating to the design, development, or 
manufacture of the product or process. This paragraph does not apply 
to data that may be necessary for the Government to operate and 
maintain the product or use the process if the Government obtains it 
as an element of performance under the contract. 
(c) TECHNICAL DATA DEVELOPED WITH FEDERAL AMOUNTS.—
(1) USE BY GOVERNMENT AND AGENCIES.—Except as otherwise ex-
pressly provided by Federal statute, with respect to executive agencies 
subject to part C of this subtitle, regulations prescribed under sub-
section (a) shall provide that— 
(A) the Government has unlimited rights in technical data de-
veloped exclusively with Federal amounts if delivery of the data—
(i) was required as an element of performance under a con-
tract; and 
(ii) is needed to ensure the competitive acquisition of sup-
plies or services that will be required in substantial quantities 
in the future; and
(B) the Government and each agency of the Government has an 
unrestricted, royalty-free right to use, or to have its contractors 
use, for governmental purposes (excluding publication outside the 
Government) technical data developed exclusively with Federal 
amounts. 
(2) REQUIREMENTS IN ADDITION TO OTHER RIGHTS OF THE GOV-
ERNMENT.—The requirements of paragraph (1) are in addition to and 
not in lieu of any other rights the Government may have pursuant to 
law. 
(d) FACTORS TO BE CONSIDERED IN PRESCRIBING REGULATIONS.—The 
following factors shall be considered in prescribing regulations under sub-
section (a): 
(1) Whether the item or process to which the technical data pertains 
was developed—
(A) exclusively with Federal amounts; 
(B) exclusively at private expense; or 
(C) in part with Federal amounts and in part at private ex-
pense. 
(2) The statement of congressional policy and objectives in section 
200 of title 35, the statement of purposes in section 2(b) of the Small 
Business Innovation Development Act of 1982 (Public Law 97–219, 15 
U.S.C. 638 note), and the declaration of policy in section 2 of the 
Small Business Act (15 U.S.C. 631). 
(3) The interest of the Government in increasing competition and 
lowering costs by developing and locating alternative sources of supply 
and manufacture. 
(e) PROVISIONS
REQUIRED
IN
CONTRACTS.—Regulations prescribed 
under subsection (a) shall require that a contract for property or services 
entered into by an executive agency contain appropriate provisions relating 
to technical data, including provisions—
(1) defining the respective rights of the Government and the con-
tractor or subcontractor (at any tier) regarding technical data to be de-
livered under the contract; 
(2) specifying technical data to be delivered under the contract and 
schedules for delivery; 
(3) establishing or referencing procedures for determining the ac-
ceptability of technical data to be delivered under the contract; 
(4) establishing separate contract line items for technical data to be 
delivered under the contract;
(5) to the maximum practicable extent, identifying, in advance of de-
livery, technical data which is to be delivered with restrictions on the 
right of the Government to use the data; 
(6) requiring the contractor to revise any technical data delivered 
under the contract to reflect engineering design changes made during 
the performance of the contract and affecting the form, fit, and func-
tion of the items specified in the contract and to deliver the revised 
technical data to an agency within a time specified in the contract; 
(7) requiring the contractor to furnish written assurance, when tech-
nical data is delivered or is made available, that the technical data is 
complete and accurate and satisfies the requirements of the contract 
concerning technical data; 
(8) establishing remedies to be available to the Government when 
technical data required to be delivered or made available under the con-
tract is found to be incomplete or inadequate or to not satisfy the re-
quirements of the contract concerning technical data; and 
(9) authorizing the head of the agency to withhold payments under 
the contract (or exercise another remedy the head of the agency con-
siders appropriate) during any period if the contractor does not meet 
the requirements of the contract pertaining to the delivery of technical 
data. 
§ 2303. Conflict of interest standards for consultants 
(a) CONTENT OF REGULATIONS.—The Administrator for Federal Pro-
curement Policy shall prescribe Government-wide regulations that set 
forth—
(1) conflict of interest standards for persons who provide consulting 
services described in subsection (b); and 
(2) procedures, including registration, certification, and enforcement 
requirements as may be appropriate, to promote compliance with the 
standards. 
(b) SERVICES SUBJECT TO REGULATIONS.—Regulations required by sub-
section (a) apply to—
(1) advisory and assistance services provided to the Government to 
the extent necessary to identify and evaluate the potential for conflicts 
of interest that could be prejudicial to the interests of the United 
States; 
(2) services related to support of the preparation or submission of 
bids and proposals for Federal contracts to the extent that inclusion 
of the services in the regulations is necessary to identify and evaluate
the potential for conflicts of interest that could be prejudicial to the 
interests of the United States; and
(3) other services related to Federal contracts as specified in the reg-
ulations prescribed under subsection (a) to the extent necessary to 
identify and evaluate the potential for conflicts of interest that could 
be prejudicial to the interests of the United States. 
(c) INTELLIGENCE ACTIVITIES EXEMPTION.—
(1) ACTIVITIES THAT MAY BE EXEMPT.—Intelligence activities as de-
fined in section 3.4(e) of Executive Order No. 12333 or a comparable 
definitional section in any successor order may be exempt from the reg-
ulations required by subsection (a). 
(2) REPORT.—The Director of Central Intelligence shall report to 
the Intelligence and Appropriations Committees of Congress each Jan-
uary 1, delineating the activities and organizations that have been ex-
empted under paragraph (1). 
(d) PRESIDENTIAL DETERMINATION.—Before the regulations required by 
subsection (a) are prescribed, the President shall determine if prescribing 
the regulations will have a significantly adverse effect on the accomplish-
ment of the mission of the Defense Department or another Federal agency. 
When the President determines that the regulations will have an adverse ef-
fect, the President shall report to the appropriate committees of the Senate 
and the House of Representatives, stating in full the reasons for the deter-
mination. When the report is submitted, the requirement for the regulations 
shall be null and void. 
§ 2304. Authority of Director of Office of Management and 
Budget not affected 
This part does not limit the authorities and responsibilities of the Direc-
tor of the Office of Management and Budget in effect on December 1, 1983. 
§ 2305. Openness of meetings 
The Administrator for Federal Procurement Policy by regulation shall re-
quire that—
(1) formal meetings of the Office of Federal Procurement Policy, as 
designated by the Administrator, for developing procurement policies 
and regulations be open to the public; and 
(2) public notice of each meeting be given not less than 10 days 
prior to the meeting. 
§ 2306. Comptroller General’s access to information 
The Administrator for Federal Procurement Policy and personnel in the 
Office of Federal Procurement Policy shall furnish information the Comp-
troller General may require to discharge the responsibilities of the Comp-
troller General. For this purpose, the Comptroller General or his representa-
tives shall have access to all books, documents, papers, and records of the 
Office.
§ 2307. Modular contracting for information technology 
(a) MODULAR CONTRACTING DESCRIBED.—Under modular contracting, 
an executive agency’s need for a system is satisfied in successive acquisi-
tions of interoperable increments. Each increment complies with common or 
commercially accepted standards applicable to information technology so 
that the increments are compatible with other increments of information 
technology comprising the system. 
(b) USE.—To the maximum extent practicable, the head of an executive 
agency should use modular contracting for an acquisition of a major system 
of information technology. 
(c) PROVISIONS IN FEDERAL ACQUISITION REGULATION.—The Federal 
Acquisition Regulation shall provide that—
(1) under the modular contracting process, an acquisition of a major 
system of information technology may be divided into several smaller 
acquisition increments that—
(A) are easier to manage individually than would be one com-
prehensive acquisition; 
(B) address complex information technology objectives incre-
mentally in order to enhance the likelihood of achieving workable 
solutions for attaining those objectives; 
(C) provide for delivery, implementation, and testing of work-
able systems or solutions in discrete increments, each of which 
comprises a system or solution that is not dependent on a subse-
quent increment in order to perform its principal functions; and 
(D) provide an opportunity for subsequent increments of the ac-
quisition to take advantage of any evolution in technology or needs 
that occurs during conduct of the earlier increments; 
(2) to the maximum extent practicable, a contract for an increment 
of an information technology acquisition should be awarded within 180 
days after the solicitation is issued and, if the contract for that incre-
ment cannot be awarded within that period, the increment should be 
considered for cancellation; and 
(3) the information technology provided for in a contract for acquisi-
tion of information technology should be delivered within 18 months 
after the solicitation resulting in award of the contract was issued. 
§ 2308. Protection of constitutional rights of contractors 
(a) PROHIBITION ON REQUIRING WAIVER OF RIGHTS.—A contractor may 
not be required, as a condition for entering into a contract with the Federal 
Government, to waive a right under the Constitution for a purpose relating 
to the Chemical Weapons Convention Implementation Act of 1998 (22
U.S.C. 6701 et seq.) or the Chemical Weapons Convention (as defined in 
section 3 of the Act (22 U.S.C. 6701)). 
(b) PERMISSIBLE CONTRACT CLAUSES.—Subsection (a) does not prohibit 
an executive agency from including in a contract a clause that requires the 
contractor to permit inspections to ensure that the contractor is performing 
the contract in accordance with the provisions of the contract. 
§ 2309. Performance-based contracts or task orders for serv-
ices to be treated as contracts for the procurement 
of commercial items 
(a) CRITERIA.—A performance-based contract for the procurement of 
services entered into by an executive agency or a performance-based task 
order for services issued by an executive agency may be treated as a con-
tract for the procurement of commercial items if—
(1) the value of the contract or task order is estimated not to exceed 
$25,000,000; 
(2) the contract or task order sets forth specifically each task to be 
performed and, for each task—
(A) defines the task in measurable, mission-related terms; 
(B) identifies the specific end products or output to be achieved; 
and 
(C) contains, firm, fixed prices for specific tasks to be per-
formed or outcomes to be achieved; and 
(3) the source of the services provides similar services to the general 
public under terms and conditions similar to those offered to the Fed-
eral Government. 
(b) REGULATIONS.—Regulations implementing this section shall require 
agencies to collect and maintain reliable data sufficient to identify the con-
tracts or task orders treated as contracts for commercial items using the 
authority of this section. The data may be collected using the Federal Pro-
curement Data System or other reporting mechanism. 
(c) REPORT.—Not later than two years after November 24, 2003, the Di-
rector of the Office of Management and Budget shall prepare and submit 
to the Committees on Governmental Affairs and on Armed Services of the 
Senate and the Committees on Government Reform and on Armed Services 
of the House of Representatives a report on the contracts or task orders 
treated as contracts for commercial items using the authority of this section. 
The report shall include data on the use of the authority, both government-
wide and for each department and agency. 
(d) EXPIRATION.—The authority under this section expires 10 years after 
November 24, 2003.
PART C—PROCUREMENT 
CHAPTER 31—GENERAL
Sec. 
3101.
Definitions. 
3102.
Applicability. 
3103.
Delegation and assignment of powers, functions, and responsibilities. 
3104.
Acquisition programs. 
3105.
Small business concerns. 
3106.
New contracts and grants and merit-based selection procedures. 
3107.
Erection, repair, or furnishing of public buildings and improvements not authorized, 
and certain contracts not permitted, by this part.
§ 3101. Definitions 
In this part—
(1) AGENCY HEAD.—The term ‘‘agency head’’ means the head or 
any assistant head of an executive agency, and may at the option of 
the Administrator of General Services include the chief official of any 
principal organizational unit of the General Services Administration. 
(2) COMPETITIVE
PROCEDURES.—The term ‘‘competitive proce-
dures’’ means procedures under which an executive agency enters into 
a contract pursuant to full and open competition. The term also in-
cludes—
(A) procurement of architectural or engineering services con-
ducted in accordance with chapter 11 of title 40; 
(B) the competitive selection of basic research proposals result-
ing from a general solicitation and the peer review or scientific re-
view (as appropriate) of those proposals; 
(C) the procedures established by the Administrator for the 
multiple awards schedule program of the Administration if—
(i) participation in the program has been open to all re-
sponsible sources; and 
(ii) orders and contracts under those procedures result in 
the lowest overall cost alternative to meet the needs of the 
Government; 
(D) procurements conducted in furtherance of section 15 of the 
Small Business Act (15 U.S.C. 644) as long as all responsible 
business concerns that are entitled to submit offers for those pro-
curements are permitted to compete; and 
(E) a competitive selection of research proposals resulting from 
a general solicitation and peer review or scientific review (as ap-
propriate) solicited pursuant to section 9 of the Act (15 U.S.C. 
638). 
(3) SIMPLIFIED ACQUISITION THRESHOLD.—
(A) IN GENERAL.—The term ‘‘simplified acquisition threshold’’ 
has the meaning provided that term in section 133 of this title,
except that, in the case of a contract to be awarded and per-
formed, or purchase to be made, outside the United States in sup-
port of a contingency operation or a humanitarian or peacekeeping 
operation, the term means an amount equal to two times the 
amount specified for that term in section 133. 
(B) SPECIFIC DEFINITIONS RELATING TO SIMPLIFIED ACQUISI-
TION THRESHOLD.—In subclause (a)—
(i) CONTINGENCY OPERATION.—The term ‘‘contingency op-
eration’’ has the meaning given that term in section 101(a) 
of title 10. 
(ii) HUMANITARIAN OR PEACEKEEPING OPERATION.—The 
term ‘‘humanitarian or peacekeeping operation’’ means a 
military operation in support of the provision of humanitarian 
or foreign disaster assistance or in support of a peacekeeping 
operation under chapter VI or VII of the Charter of the 
United Nations. The term does not include routine training, 
force rotation, or stationing. 
§ 3102. Applicability 
(a) IN GENERAL.—An executive agency shall make purchases and con-
tracts for property and services in accordance with this part and imple-
menting regulations of the Administrator of General Services. 
(b) SIMPLIFIED ACQUISITION THRESHOLD AND PROCEDURES.—
(1) SIMPLIFIED ACQUISITION THRESHOLD.—
(A) DEFINITION.—For purposes of an acquisition by an execu-
tive agency, the simplified acquisition threshold is as specified in 
section 133 of this title. 
(B) INAPPLICABLE LAWS.—A law properly listed in the Federal 
Acquisition Regulation pursuant to section 1905 of this title does 
not apply to or with respect to a contract or subcontract that is 
not greater than the simplified acquisition threshold. 
(2) SIMPLIFIED ACQUISITION PROCEDURES.—Simplified acquisition 
procedures contained in the Federal Acquisition Regulation pursuant to 
section 1901 of this title apply in executive agencies as provided in sec-
tion 1901. 
(c) EXCEPTIONS.— 
(1) IN GENERAL.—This part does not apply—
(A) to the Department of Defense, the Coast Guard, and the 
National Aeronautics and Space Administration; or 
(B) except as provided in paragraph (2), when this part is made 
inapplicable pursuant to law.
(2) APPLICABILITY OF CERTAIN LAWS RELATED TO ADVERTISING, 
OPENING OF BIDS, AND LENGTH OF CONTRACT.—Sections 6101, 6103, 
and 6304 of this title do not apply to the procurement of property or 
services made by an executive agency pursuant to this part. However, 
when this part is made inapplicable by any law, sections 6101 and 
6103 apply in the absence of authority conferred by statute to procure 
without advertising or without regard to section 6101. A law that au-
thorizes an executive agency (other than an executive agency exempted 
from this part by this subsection) to procure property or services with-
out advertising or without regard to section 6101 is deemed to author-
ize the procurement pursuant to the provisions of this part relating to 
procedures other than sealed-bid procedures. 
§ 3103. Delegation and assignment of powers, functions, and 
responsibilities 
(a) IN GENERAL.—Except to the extent expressly prohibited by another 
law, the head of an executive agency may delegate to another officer or offi-
cial of that agency any power under this part. 
(b) PROCUREMENTS FOR OR WITH ANOTHER AGENCY.—Subject to sub-
section (a), to facilitate the procurement of property and services covered 
by this part by an executive agency for another executive agency, and to 
facilitate joint procurement by executive agencies—
(1) the head of an executive agency may delegate functions and as-
sign responsibilities relating to procurement to any officer or employee 
within the agency; 
(2) the heads of two or more executive agencies, consistent with sec-
tion 1535 of title 31 and regulations prescribed under section 1074 of 
the Federal Acquisition Streamlining Act of 1994 (Public Law 103–
355, 31 U.S.C. 1535 note), may agree to delegate procurement func-
tions and assign procurement responsibilities from one executive agency 
to another of those executive agencies or to an officer or civilian em-
ployee of another of those executive agencies; and 
(3) the heads of two or more executive agencies may establish joint 
or combined offices to exercise procurement functions and responsibil-
ities. 
§ 3104. Acquisition programs 
(a) CONGRESSIONAL POLICY.—It is the policy of Congress that the head 
of each executive agency should achieve, on average, 90 percent of the cost, 
performance, and schedule goals established for major acquisition programs 
of the agency.
(b) ESTABLISHMENT OF GOALS.—
(1) BY HEAD OF EXECUTIVE AGENCY.—The head of each executive 
agency shall approve or define the cost, performance, and schedule 
goals for major acquisition programs of the agency. 
(2) BY CHIEF FINANCIAL OFFICER.—The chief financial officer of an 
executive agency shall evaluate the cost goals proposed for each major 
acquisition program of the agency. 
(c) IDENTIFICATION OF NONCOMPLIANT PROGRAMS.—When it is nec-
essary to implement the policy set out in subsection (a), the head of an ex-
ecutive agency shall— 
(1) determine whether there is a continuing need for programs that 
are significantly behind schedule, over budget, or not in compliance 
with performance or capability requirements; and 
(2) identify suitable actions to be taken, including termination, with 
respect to those programs. 
§ 3105. Small business concerns 
It is the policy of Congress that a fair proportion of the total purchases 
and contracts for property and services for the Federal Government shall 
be placed with small business concerns. 
§ 3106. New contracts and grants and merit-based selection 
procedures 
(a) CONGRESSIONAL POLICY.—It is the policy of Congress that—
(1) an executive agency should not be required by legislation to 
award—
(A) a new contract to a specific non-Federal Government entity; 
or 
(B) a new grant for research, development, use, or evaluation 
to a non-Government entity; and 
(2) a program, project, or technology identified in legislation be pro-
cured through merit-based selection procedures. 
(b) NEW CONTRACT AND NEW GRANT DESCRIBED.—For purposes of 
this section—
(1) a contract is a new contract unless the work provided for in the 
contract is a continuation of the work performed by the specified entity 
under a prior contract; and 
(2) a grant is a new grant unless the work provided for in the grant 
is a continuation of the work performed by the specified entity under 
a prior grant. 
(c) REQUIREMENTS FOR AWARDING NEW CONTRACT OR NEW GRANT.—
A provision of law does not require a new contract or new grant be awarded 
to a specified non-Government entity unless the provision of law specifi-
cally—
(1) refers to this section; 
(2) identifies the particular non-Government entity involved; and 
(3) states that the award to that entity is required by the provision 
of law in contravention of the policy set forth in subsection (a). 
(d) EXCEPTION.—This section does not apply to a contract or grant that 
calls on the National Academy of Sciences to investigate, examine, or experi-
ment on a subject of science or art of significance to an executive agency 
and to report on those matters to Congress or an agency of the Govern-
ment. 
§ 3107. Erection, repair, or furnishing of public buildings 
and improvements not authorized, and certain 
contracts not permitted, by this part 
This part does not—
(1) authorize the erection, repair, or furnishing of a public building 
or public improvement; or 
(2) permit a contract for the construction or repair of a building, 
road, sidewalk, sewer, main, or similar items using procedures other 
than sealed-bid procedures under section 3301(b)(1)(A) of this title if 
the conditions set forth in section 3301(b)(1)(A) apply or the contract 
is to be performed outside the United States. 
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.
§ 3301. Full and open competition 
(a) IN GENERAL.—Except as provided in sections 3302, 3303(a), and 
3304 of this title and except in the case of procurement procedures other-
wise expressly authorized by statute, an executive agency in conducting a 
procurement for property or services shall—
(1) obtain full and open competition through the use of competitive 
procedures in accordance with the requirements of this part and the 
Federal Acquisition Regulation; and 
(2) use the competitive procedure or combination of competitive pro-
cedures that is best suited under the circumstances of the procurement. 
(b) APPROPRIATE COMPETITIVE PROCEDURES.—
(1) USE OF SEALED BIDS.—In determining the competitive proce-
dures appropriate under the circumstance, an executive agency shall—
(A) solicit sealed bids if—
(i) time permits the solicitation, submission, and evaluation 
of sealed bids; 
(ii) the award will be made on the basis of price and other 
price-related factors; 
(iii) it is not necessary to conduct discussions with the re-
sponding sources about their bids; and 
(iv) there is a reasonable expectation of receiving more 
than one sealed bid; or 
(B) request competitive proposals if sealed bids are not appro-
priate under clause (A). 
(2) SEALED BID NOT REQUIRED.—Paragraph (1)(A) does not re-
quire the use of sealed-bid procedures in cases in which section 204(e) 
of title 23 applies. 
(c) EFFICIENT FULFILLMENT OF GOVERNMENT REQUIREMENTS.—The 
Federal Acquisition Regulation shall ensure that the requirement to obtain 
full and open competition is implemented in a manner that is consistent 
with the need to efficiently fulfill the Federal Government’s requirements. 
§ 3302. Exclusion of particular source or restriction of solici-
tation to small business concerns 
(a) EXCLUSION OF PARTICULAR SOURCE.—
(1) CRITERIA FOR EXCLUSION.—An executive agency may provide 
for the procurement of property or services covered by this section 
using competitive procedures but excluding a particular source to estab-
lish or maintain an alternative source of supply for that property or 
service if the agency head determines that to do so—
(A) would increase or maintain competition and likely result in 
reduced overall cost for the procurement, or for an anticipated 
procurement, of the property or services; 
(B) would be in the interest of national defense in having a fa-
cility (or a producer, manufacturer, or other supplier) available for 
furnishing the property or service in case of a national emergency 
or industrial mobilization; 
(C) would be in the interest of national defense in establishing 
or maintaining an essential engineering, research, or development 
capability to be provided by an educational or other nonprofit in-
stitution or a Federally funded research and development center;
(D) would ensure the continuous availability of a reliable source 
of supply of the property or service;
(E) would satisfy projected needs for the property or service de-
termined on the basis of a history of high demand for the property 
or service; or 
(F) would satisfy a critical need for medical, safety, or emer-
gency supplies. 
(2) DETERMINATION
FOR
CLASS
DISALLOWED.—A determination 
under paragraph (1) may not be made for a class of purchases or con-
tracts. 
(b) EXCLUSION OF OTHER THAN SMALL BUSINESS CONCERNS.—An ex-
ecutive agency may provide for the procurement of property or services cov-
ered by this section using competitive procedures, but excluding other than 
small business concerns in furtherance of sections 9 and 15 of the Small 
Business Act (15 U.S.C. 638, 644). 
(c) NONAPPLICATION
OF JUSTIFICATION
AND APPROVAL REQUIRE-
MENTS.—A contract awarded pursuant to the competitive procedures re-
ferred to in subsections (a) and (b) is not subject to the justification and 
approval required by section 3303(d)(1) of this title. 
§ 3303. Use of noncompetitive procedures 
(a) WHEN NONCOMPETITIVE PROCEDURES MAY BE USED.—An execu-
tive agency may use procedures other than competitive procedures only 
when—
(1) the property or services needed by the executive agency are avail-
able from only one responsible source and no other type of property 
or services will satisfy the needs of the executive agency; 
(2) the executive agency’s need for the property or services is of such 
an unusual and compelling urgency that the Federal Government would 
be seriously injured unless the executive agency is permitted to limit 
the number of sources from which it solicits bids or proposals; 
(3) it is necessary to award the contract to a particular source—
(A) to maintain a facility, producer, manufacturer, or other sup-
plier available for furnishing property or services in case of a na-
tional emergency or to achieve industrial mobilization; 
(B) to establish or maintain an essential engineering, research, 
or development capability to be provided by an educational or 
other nonprofit institution or a Federally funded research and de-
velopment center; 
(C) to procure the services of an expert for use in any litigation 
or dispute (including any reasonably foreseeable litigation or dis-
pute) involving the Government or in any trial, hearing, or pro-
ceeding before a court, administrative tribunal, or agency, whether 
or not the expert is expected to testify; or
(D) to procure the services of an expert or neutral for use in 
any part of an alternative dispute resolution or negotiated rule-
making process, whether or not the expert is expected to testify; 
(4) the terms of an international agreement or treaty between the 
Government and the government of a foreign country or an inter-
national organization, or the written directions of the government of a 
foreign country reimbursing the executive agency for the cost of the 
procurement of the property or services for that government, require 
the use of procedures other than competitive procedures; 
(5) subject to section 3106 of this title, a statute expressly author-
izes or requires that the procurement be made through another execu-
tive agency or from a specified source, or the agency’s need is for a 
brand-name commercial item for authorized resale; 
(6) the disclosure of the executive agency’s needs would compromise 
the national security unless the agency is permitted to limit the number 
of sources from which it solicits bids or proposals; or 
(7) the head of the executive agency (who may not delegate the au-
thority under this clause)—
(A) determines that it is necessary in the public interest to use 
procedures other than competitive procedures in the particular 
procurement concerned; and 
(B) notifies Congress in writing of that determination not less 
than 30 days before the award of the contract. 
(b) PROPERTY
OR SERVICES DEEMED AVAILABLE FROM ONLY ONE 
SOURCE.—For the purposes of subsection (a)(1), in the case of—
(1) a contract for property or services to be awarded on the basis 
of acceptance of an unsolicited research proposal, the property or serv-
ices are deemed to be available from only one source if the source has 
submitted an unsolicited research proposal that demonstrates a unique 
and innovative concept, the substance of which is not otherwise avail-
able to the Government and does not resemble the substance of a pend-
ing competitive procurement; or 
(2) a follow-on contract for the continued development or production 
of a major system or highly specialized equipment, the property may 
be deemed to be available only from the original source and may be 
procured through procedures other than competitive procedures when 
it is likely that award to a source other than the original source would 
result in—
(A) substantial duplication of cost to the Government that is 
not expected to be recovered through competition; or 
(B) unacceptable delay in fulfilling the executive agency’s needs.
(c) OFFER REQUESTS TO POTENTIAL SOURCES.—An executive agency 
using procedures other than competitive procedures to procure property or 
services by reason of the application of subsection (a)(2) or (6) shall request 
offers from as many potential sources as is practicable under the cir-
cumstances. 
(d) JUSTIFICATION FOR USE OF NONCOMPETITIVE PROCEDURES.—
(1) PREREQUISITES FOR AWARDING CONTRACT.—Except as provided 
in paragraph (2), an executive agency may not award a contract using 
procedures other than competitive procedures unless—
(A) the contracting officer for the contract justifies the use of 
those procedures in writing and certifies the accuracy and com-
pleteness of the justification; 
(B) the justification is approved, in the case of a contract for 
an amount—
(i) exceeding $500,000 but equal to or less than 
$10,000,000, by the competition advocate for the procuring 
activity (without further delegation) or by an official referred 
to in subclause (ii) or (iii) of this clause; 
(ii) exceeding $10,000,000 but equal to or less than 
$50,000,000, by the head of the procuring activity or by a 
delegate who, if a member of the armed forces, is a general 
or flag officer or, if a civilian, is serving in a position in which 
the individual is entitled to receive the daily equivalent of the 
maximum annual rate of basic pay payable under section 
5376 of title 5 (or in a comparable or higher position); or 
(iii) exceeding $50,000,000, by the senior procurement ex-
ecutive of the agency designated pursuant to section 1702(c) 
of this title (without further delegation); and 
(C) any required notice has been published with respect to the 
contract pursuant to section 1707 of this title and the executive 
agency has considered all bids or proposals received in response 
to that notice. 
(2) ELEMENTS OF JUSTIFICATION.—The justification required by 
paragraph (1)(A) shall include—
(A) a description of the agency’s needs; 
(B) an identification of the statutory exception from the re-
quirement to use competitive procedures and a demonstration,
based on the proposed contractor’s qualifications or the nature of 
the procurement, of the reasons for using that exception; 
(C) a determination that the anticipated cost will be fair and 
reasonable;
(D) a description of the market survey conducted or a state-
ment of the reasons a market survey was not conducted; 
(E) a listing of any sources that expressed in writing an interest 
in the procurement; and 
(F) a statement of any actions the agency may take to remove 
or overcome a barrier to competition before a subsequent procure-
ment for those needs. 
(3) JUSTIFICATION SUBJECT TO PUBLIC INSPECTION.—The justifica-
tion required by paragraph (1)(A) and any related information shall be 
made available for inspection by the public consistent with section 552 
of title 5. 
(4) JUSTIFICATION ALLOWED AFTER CONTRACT AWARDED.—In the 
case of a procurement permitted by subsection (a)(2), the justification 
and approval required by paragraph (1) may be made after the con-
tract is awarded. 
(5) JUSTIFICATION NOT REQUIRED.—The justification and approval 
required by paragraph (1) are not required if—
(A) a statute expressly requires that the procurement be made 
from a specified source; 
(B) the agency’s need is for a brand-name commercial item for 
authorized resale; 
(C) the procurement is permitted by subsection (c)(7) of this 
section; or 
(D) the procurement is conducted under chapter 85 of this title 
or section 8(a) of the Small Business Act (15 U.S.C. 637(a)). 
(6) RESTRICTIONS ON EXECUTIVE AGENCIES.—
(A) CONTRACTS AND PROCUREMENT OF PROPERTY OR SERV-
ICES.—In no case may an executive agency—
(i) enter into a contract for property or services using pro-
cedures other than competitive procedures on the basis of the 
lack of advance planning or concerns related to the amount 
available to the agency for procurement functions; or 
(ii) procure property or services from another executive 
agency unless the other executive agency complies fully with 
the requirements of this part in its procurement of the prop-
erty or services. 
(B) ADDITIONAL RESTRICTION.—The restriction set out in sub-
paragraph (A)(ii) is in addition to any other restriction provided 
by law.
§ 3304. Simplified procedures for small purchases 
(a) AUTHORIZATION.—To promote efficiency and economy in contracting 
and to avoid unnecessary burdens for agencies and contractors, the Federal 
Acquisition Regulation shall provide for special simplified procedures for 
purchases of property and services for amounts—
(1) not greater than the simplified acquisition threshold; and 
(2) greater than the simplified acquisition threshold but not greater 
than $5,000,000 for which the contracting officer reasonably expects, 
based on the nature of the property or services sought and on market 
research, that offers will include only commercial items. 
(b) LEASEHOLD INTERESTS IN REAL PROPERTY.—The Administrator of 
General Services shall prescribe regulations that provide special simplified 
procedures for acquisitions of leasehold interests in real property at rental 
rates that do not exceed the simplified acquisition threshold. The rental rate 
under a multiyear lease does not exceed the simplified acquisition threshold 
if the average annual amount of the rent payable for the period of the lease 
does not exceed the simplified acquisition threshold. 
(c) PROHIBITION ON DIVIDING CONTRACTS.—A proposed purchase or 
contract for an amount above the simplified acquisition threshold may not 
be divided into several purchases or contracts for lesser amounts to use the 
simplified procedures required by paragraph (1). 
(d) PROMOTION OF COMPETITION.—In using the simplified procedures, 
an executive agency shall promote competition to the maximum extent prac-
ticable. 
(e) COMPLIANCE WITH SPECIAL REQUIREMENTS OF FEDERAL ACQUISI-
TION REGULATION.—An executive agency shall comply with the Federal Ac-
quisition Regulation provisions referred to in section 1901(f) of this title. 
§ 3305. Planning and solicitation requirements 
(a) PLANNING AND SPECIFICATIONS.—
(1) PREPARING FOR PROCUREMENT.—In preparing for the procure-
ment of property or services, an executive agency shall—
(A) specify its needs and solicit bids or proposals in a manner 
designed to achieve full and open competition for the procurement; 
(B) use advance procurement planning and market research; 
and 
(C) develop specifications in the manner necessary to obtain full 
and open competition with due regard to the nature of the prop-
erty or services to be acquired. 
(2) REQUIREMENTS OF SPECIFICATIONS.—Each solicitation under 
this part shall include specifications that—
(A) consistent with this part, permit full and open competition; 
and 
(B) include restrictive provisions or conditions only to the extent 
necessary to satisfy the needs of the executive agency or as au-
thorized by law. 
(3) TYPES OF SPECIFICATIONS.—For the purposes of paragraphs (1) 
and (2), the type of specification included in a solicitation shall depend 
on the nature of the needs of the executive agency and the market 
available to satisfy those needs. Subject to those needs, specifications 
may be stated in terms of—
(A) function, so that a variety of products or services may qual-
ify; 
(B) performance, including specifications of the range of accept-
able characteristics or of the minimum acceptable standards; or 
(C) design requirements. 
(b) CONTENTS OF SOLICITATION.—In addition to the specifications de-
scribed in subsection (a), each solicitation for sealed bids or competitive pro-
posals (other than for a procurement for commercial items using special 
simplified procedures or a purchase for an amount not greater than the sim-
plified acquisition threshold) shall at a minimum include—
(1) a statement of—
(A) all significant factors and significant subfactors that the ex-
ecutive agency reasonably expects to consider in evaluating sealed 
bids (including price) or competitive proposals (including cost or 
price, cost-related or price-related factors and subfactors, and 
noncost-related or nonprice-related factors and subfactors); and 
(B) the relative importance assigned to each of those factors 
and subfactors; and 
(2)(A) in the case of sealed bids—
(i) a statement that sealed bids will be evaluated without discus-
sions with the bidders; and 
(ii) the time and place for the opening of the sealed bids; or 
(B) in the case of competitive proposals—
(i) either a statement that the proposals are intended to be eval-
uated with, and the award made after, discussions with the 
offerors, or a statement that the proposals are intended to be eval-
uated, and the award made, without discussions with the offerors 
(other than discussions conducted for the purpose of minor clari-
fication) unless discussions are determined to be necessary; and
(ii) the time and place for submission of proposals. 
(c) EVALUATION FACTORS.—
(1) IN GENERAL.—In prescribing the evaluation factors to be in-
cluded in each solicitation for competitive proposals, an executive agen-
cy shall—
(A) establish clearly the relative importance assigned to the 
evaluation factors and subfactors, including the quality of the 
product or services to be provided (including technical capability, 
management capability, prior experience, and past performance of 
the offeror); 
(B) include cost or price to the Federal Government as an eval-
uation factor that must be considered in the evaluation of pro-
posals; and 
(C) disclose to offerors whether all evaluation factors other than 
cost or price, when combined, are—
(i) significantly more important than cost or price; 
(ii) approximately equal in importance to cost or price; or 
(iii) significantly less important than cost or price. 
(2) RESTRICTION
ON
IMPLEMENTING
REGULATIONS.—Regulations 
implementing paragraph (1)(C) may not define the terms ‘‘significantly 
more important’’ and ‘‘significantly less important’’ as specific numeric 
weights that would be applied uniformly to all solicitations or a class 
of solicitations. 
(d) ADDITIONAL INFORMATION IN SOLICITATION.—This section does not 
prohibit an executive agency from—
(1) providing additional information in a solicitation, including nu-
meric weights for all evaluation factors and subfactors on a case-by-
case basis; or 
(2) stating in a solicitation that award will be made to the offeror 
that meets the solicitation’s mandatory requirements at the lowest cost 
or price. 
(e) LIMITATION ON EVALUATION OF PURCHASE OPTIONS.—An executive 
agency, in issuing a solicitation for a contract to be awarded using sealed 
bid procedures, may not include in the solicitation a clause providing for the 
evaluation of prices for options to purchase additional property or services 
under the contract unless the executive agency has determined that there 
is a reasonable likelihood that the options will be exercised. 
(f) AUTHORIZATION
OF TELECOMMUTING
FOR FEDERAL CONTRAC-
TORS—
(1) DEFINITION.—In this subsection, the term ‘‘executive agency’’ 
has the meaning given that term in section 132 of this title. 
(2) FEDERAL
ACQUISITION
REGULATION
TO
ALLOW
TELECOM-
MUTING.—The Federal Acquisition Regulation issued in accordance
with sections 1121(b) and 1302(a)(1) of this title shall permit telecom-
muting by employees of Government contractors in the performance of 
contracts entered into with executive agencies. 
(3) SCOPE OF ALLOWANCE.—The Regulation at a minimum shall 
provide that a solicitation for the acquisition of property or services 
may not set forth any requirement or evaluation criteria that would—
(A) render an offeror ineligible to enter into a contract on the 
basis of the inclusion of a plan of the offeror to allow the offeror’s 
employees to telecommute, unless the contracting officer concerned 
first determines that the requirements of the agency, including se-
curity requirements, cannot be met if telecommuting is allowed 
and documents in writing the basis for the determination; or 
(B) reduce the scoring of an offer on the basis of the inclusion 
in the offer of a plan of the offeror to allow the offeror’s employ-
ees to telecommute, unless the contracting officer concerned first 
determines that the requirements of the agency, including security 
requirements, would be adversely impacted if telecommuting is 
permitted and documents in writing the basis for the determina-
tion. 
§ 3306. Preference for commercial items 
(a) RELATIONSHIP OF PROVISIONS OF LAW TO PROCUREMENT OF COM-
MERCIAL ITEMS.—
(1) THIS PART.—Unless otherwise specifically provided, this section 
does not provide that another provision of this part relating to procure-
ment is inapplicable to the procurement of commercial items. 
(2) LAWS LISTED IN FEDERAL ACQUISITION REGULATION.—A con-
tract for the procurement of a commercial item entered into by the 
head of an executive agency is not subject to a law properly listed in 
the Federal Acquisition Regulation pursuant to section 1906 of this 
title. 
(b) PREFERENCE.—The head of each executive agency shall ensure that, 
to the maximum extent practicable—
(1) requirements of the executive agency with respect to a procure-
ment of supplies or services are stated in terms of—
(A) functions to be performed; 
(B) performance required; or 
(C) essential physical characteristics; 
(2) those requirements are defined so that commercial items or, to 
the extent that commercial items suitable to meet the executive agen-
cy’s needs are not available, nondevelopmental items other than com-
mercial items may be procured to fulfill those requirements; and
(3) offerors of commercial items and nondevelopmental items other 
than commercial items are provided an opportunity to compete in any 
procurement to fill those requirements. 
(c) IMPLEMENTATION.—The head of each executive agency shall ensure 
that procurement officials in that executive agency, to the maximum extent 
practicable—
(1) acquire commercial items or nondevelopmental items other than 
commercial items to meet the needs of the executive agency; 
(2) require that prime contractors and subcontractors at all levels 
under contracts of the executive agency incorporate commercial items 
or nondevelopmental items other than commercial items as components 
of items supplied to the executive agency; 
(3) modify requirements in appropriate cases to ensure that the re-
quirements can be met by commercial items or, to the extent that com-
mercial items suitable to meet the executive agency’s needs are not 
available, nondevelopmental items other than commercial items; 
(4) state specifications in terms that enable and encourage bidders 
and offerors to supply commercial items or, to the extent that commer-
cial items suitable to meet the executive agency’s needs are not avail-
able, nondevelopmental items other than commercial items in response 
to the executive agency solicitations; 
(5) revise the executive agency’s procurement policies, practices, and 
procedures not required by law to reduce any impediments in those 
policies, practices, and procedures to the acquisition of commercial 
items; and 
(6) require training of appropriate personnel in the acquisition of 
commercial items. 
(d) MARKET RESEARCH.—
(1) WHEN TO BE USED.—The head of an executive agency shall con-
duct market research appropriate to the circumstances—
(A) before developing new specifications for a procurement by 
that executive agency; and 
(B) before soliciting bids or proposals for a contract in excess 
of the simplified acquisition threshold. 
(2) USE OF RESULTS.—The head of an executive agency shall use 
the results of market research to determine whether commercial items 
or, to the extent that commercial items suitable to meet the executive 
agency’s needs are not available, nondevelopmental items other than 
commercial items are available that—
(A) meet the executive agency’s requirements;
(B) could be modified to meet the executive agency’s require-
ments; or 
(C) could meet the executive agency’s requirements if those re-
quirements were modified to a reasonable extent. 
(3) ONLY MINIMUM INFORMATION REQUIRED TO BE SUBMITTED.—
In conducting market research, the head of an executive agency should 
not require potential sources to submit more than the minimum infor-
mation that is necessary to make the determinations required in para-
graph (2). 
(e) REGULATIONS.—
(1) IN GENERAL.—The Federal Acquisition Regulation shall provide 
regulations to implement this section and sections 102–104 and 109 
of this title. 
(2) CONTRACT CLAUSES.—
(A) DEFINITION.—In this paragraph, the term ‘‘subcontract’’ 
includes a transfer of commercial items between divisions, subsidi-
aries, or affiliates of a contractor or subcontractor. 
(B) LIST OF CLAUSES TO BE INCLUDED.—The regulations pre-
scribed under paragraph (1) shall contain a list of contract clauses 
to be included in contracts for the acquisition of commercial end 
items. To the maximum extent practicable, the list shall include 
only those contract clauses—
(i) that are required to implement provisions of law or ex-
ecutive orders applicable to acquisitions of commercial items 
or commercial components; or 
(ii) that are determined to be consistent with standard 
commercial practice. 
(C) REQUIREMENTS OF PRIME CONTRACTOR.—The regulations 
shall provide that the Federal Government shall not require a 
prime contractor to apply to any of its divisions, subsidiaries, af-
filiates, subcontractors, or suppliers that are furnishing commer-
cial items any contract clause except those—
(i) that are required to implement provisions of law or ex-
ecutive orders applicable to subcontractors furnishing com-
mercial items or commercial components; or 
(ii) that are determined to be consistent with standard 
commercial practice. 
(D) CLAUSES THAT MAY BE USED IN A CONTRACT.—To the 
maximum extent practicable, only the contract clauses listed pur-
suant to subparagraph (B) may be used in a contract, and only 
the contract clauses referred to in subparagraph (C) may be re-
quired to be used in a subcontract, for the acquisition of commer-
cial items or commercial components by or for an executive agen-
cy. 
(E) WAIVER OF CONTRACT CLAUSES.—The Federal Acquisition 
Regulation shall provide standards and procedures for waiving the 
use of contract clauses required pursuant to subparagraph (B), 
other than those required by law, including standards for deter-
mining the cases in which a waiver is appropriate. 
(3) MARKET ACCEPTANCE.—
(A) REQUIREMENT
OF
OFFERORS.—The Federal Acquisition 
Regulation shall provide that under appropriate conditions the 
head of an executive agency may require offerors to demonstrate 
that the items offered—
(i) have achieved commercial market acceptance or been 
satisfactorily supplied to an executive agency under current or 
recent contracts for the same or similar requirements; and 
(ii) otherwise meet the item description, specifications, or 
other criteria prescribed in the public notice and solicitation 
relating to the contract. 
(B) REGULATION TO PROVIDE GUIDANCE ON CRITERIA.—The 
Federal Acquisition Regulation shall provide guidance to ensure 
that the criteria for determining commercial market acceptance in-
clude the consideration of—
(i) the minimum needs of the executive agency concerned; 
and 
(ii) the entire relevant commercial market, including small 
businesses. 
(4) PROVISIONS RELATING TO TYPES OF CONTRACTS.—
(A) TYPES OF CONTRACTS THAT MAY BE USED.—The Federal 
Acquisition Regulation shall include, for acquisitions of commercial 
items—
(i) a requirement that firm, fixed price contracts or fixed 
price with economic price adjustment contracts be used to the 
maximum extent practicable; 
(ii) a prohibition on use of cost type contracts; and 
(iii) subject to subparagraph (B), authority for use of a 
time-and-materials or labor-hour contract for the procurement 
of commercial services that are commonly sold to the general 
public through those contracts and are purchased by the pro-
curing agency on a competitive basis.
(B) WHEN TIME-AND-MATERIALS OR LABOR-HOUR CONTRACT 
MAY BE USED.—A time-and-materials or labor-hour contract may 
be used pursuant to the authority of referred to in subparagraph 
(A)(iii)—
(i) only for a procurement of commercial services in a cat-
egory of commercial services described in subparagraph (C); 
and 
(ii) only if the contracting officer for the procurement—
(I) executes a determination and findings that no 
other contract type is suitable; 
(II) includes in the contract a ceiling price that the 
contractor exceeds at the risk of the contractor; and 
(III) authorizes a subsequent change in the ceiling 
price only on a determination, documented in the con-
tract file, that it is in the best interest of the procuring 
agency to change the ceiling price. 
(C) CATEGORIES OF COMMERCIAL SERVICES.—The categories of 
commercial services referred to in subparagraph (B) are as fol-
lows: 
(i) Commercial services procured for support of a commer-
cial item, as described in section 103(5) of this title. 
(ii) Any other category of commercial services that the Ad-
ministrator for Federal Procurement Policy designates in the 
Federal Acquisition Regulation for the purposes of this sub-
paragraph on the basis that—
(I) the commercial services in the category are of a 
type of commercial services that are commonly sold to 
the general public through use of time-and-materials or 
labor-hour contracts; and 
(II) it would be in the best interests of the Govern-
ment to authorize use of time-and-materials or labor-
hour contracts for purchases of the commercial services 
in the category. 
(5) CONTRACT
QUALITY
REQUIREMENTS.—Regulations prescribed 
under paragraph (1) shall include provisions that—
(A) to the maximum extent practicable allow a contractor under 
a commercial items acquisition to use the existing quality assur-
ance system of the contractor as a substitute for compliance with 
an otherwise applicable requirement for the Government to inspect 
or test the commercial items before the contractor’s tender of 
those items for acceptance by the Government;
(B) to the maximum extent practicable require that the execu-
tive agency take advantage of warranties (including extended war-
ranties) offered by offerors of commercial items and use those 
warranties for the repair and replacement of commercial items; 
and 
(C) set forth guidance regarding the use of past performance of 
commercial items and sources as a factor in contract award deci-
sions. 
§ 3307. Planning for future competition in contracts for 
major systems 
(a) DEVELOPMENT CONTRACT.—
(1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre-
paring a solicitation for the award of a development contract for a 
major system, the head of an agency shall consider requiring in the so-
licitation that an offeror include in its offer proposals described in 
paragraph (2). In determining whether to require the proposals, the 
head of the agency shall consider the purposes for which the system 
is being procured and the technology necessary to meet the system’s 
required capabilities. If the proposals are required, the head of the 
agency shall consider them in evaluating the offeror’s price. 
(2) CONTENTS OF PROPOSALS.—The proposals that the head of an 
agency is to consider requiring in a solicitation for the award of a de-
velopment contract are the following: 
(A) Proposals to incorporate in the design of the major system 
items that are currently available within the supply system of the 
Federal agency responsible for the major system, available else-
where in the national supply system, or commercially available 
from more than one source. 
(B) With respect to items that are likely to be required in sub-
stantial quantities during the system’s service life, proposals to in-
corporate in the design of the major system items that the Federal 
Government will be able to acquire competitively in the future. 
(b) PRODUCTION CONTRACT.—
(1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre-
paring a solicitation for the award of a production contract for a major 
system, the head of an agency shall consider requiring in the solicita-
tion that an offeror include in its offer proposals described in para-
graph (2). In determining whether to require the proposals, the head 
of the agency shall consider the purposes for which the system is being 
procured and the technology necessary to meet the system’s required
capabilities. If the proposals are required, the head of the agency shall 
consider them in evaluating the offeror’s price. 
(2) CONTENT OF PROPOSALS.—The proposals that the head of an 
agency is to consider requiring in a solicitation for the award of a pro-
duction contract are proposals identifying opportunities to ensure that 
the Government will be able to obtain on a competitive basis items pro-
cured in connection with the system that are likely to be reprocured 
in substantial quantities during the service life of the system. Proposals 
submitted in response to this requirement may include the following: 
(A) Proposals to provide to the Government the right to use 
technical data to be provided under the contract for competitive 
reprocurement of the item, together with the cost to the Govern-
ment of acquiring the data and the right to use the data. 
(B) Proposals for the qualification or development of multiple 
sources of supply for the item. 
(c) CONSIDERATION OF FACTORS AS OBJECTIVES IN NEGOTIATIONS.—
If the head of an agency is making a noncompetitive award of a develop-
ment contract or a production contract for a major system, the factors spec-
ified in subsections (a) and (b) to be considered in evaluating an offer for 
a contract may be considered as objectives in negotiating the contract to 
be awarded. 
§ 3308. Design-build selection procedures 
(a) AUTHORIZATION.—Unless the traditional acquisition approach of de-
sign-bid-build established under chapter 11 of title 40 or another acquisition 
procedure authorized by law is used, the head of an executive agency shall 
use the two-phase selection procedures authorized in this section for enter-
ing into a contract for the design and construction of a public building, fa-
cility, or work when a determination is made under subsection (b) that the 
procedures are appropriate for use. 
(b) CRITERIA FOR USE.—A contracting officer shall make a determina-
tion whether two-phase selection procedures are appropriate for use for en-
tering into a contract for the design and construction of a public building, 
facility, or work when—
(1) the contracting officer anticipates that three or more offers will 
be received for the contract; 
(2) design work must be performed before an offeror can develop a 
price or cost proposal for the contract; 
(3) the offeror will incur a substantial amount of expense in pre-
paring the offer; and 
(4) the contracting officer has considered information such as the 
following: