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41 U.S.C. § 4501 (PUBLIC CONTRACTS)
§ 4501. Authority of executive agency
An executive agency may—
(1) make advance, partial, progress or other payments under contracts for property or services made by the agency; and
(2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3790.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4501
41:255(a).
June 30, 1949, ch. 288, title III, § 305(a), 63 Stat. 396; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 85–800, § 4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, § 2051(a)(2), (c), Oct. 13, 1994, 108 Stat. 3304.
heading: Relationship to Prompt Payment Requirements
text: Pub. L. 103–355, title II, § 2051(f), Oct. 13, 1994, 108 Stat. 3306, provided that: “The amendments made by this section [see Tables for classification] are not intended to impair or modify procedures required by the provisions of chapter 39 of title 31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [Oct. 13, 1994]), except that the Government may accept payment terms offered by a contractor offering a commercial item.”
41 U.S.C. § 4502 (PUBLIC CONTRACTS)
§ 4502. Payment
(a) Basis for Payment.—
When practicable, payments under section 4501 of this title shall be made on any of the following bases:
(1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.
(2) Accomplishment of events defined in the program management plan.
(3) Other quantifiable measures of results.
(b) Payment Amount.—
Payments made under section 4501 of this title may not exceed the unpaid contract price.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3791.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4502(a)
41:255(b).
June 30, 1949, ch. 288, title III, § 305(b), as added Pub. L. 103–355, title II, § 2051(b), Oct. 13, 1994, 108 Stat. 3304.
4502(b)
41:255(c).
June 30, 1949, ch. 288, title III, § 305(c), 63 Stat. 396; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 85–800, § 4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, § 2051(a)(3), (5), Oct. 13, 1994, 108 Stat. 3304.
41 U.S.C. § 4503 (PUBLIC CONTRACTS)
§ 4503. Security for advance payments
Advance payments under section 4501 of this title may be made only on adequate security and a determination by the agency head that to do so would be in the public interest. The security may be in the form of a lien in favor of the Federal Government on the property contracted for, on the balance in an account in which the payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien shall be paramount to all other liens and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the Federal Government.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3791.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4503
41:255(d).
June 30, 1949, ch. 288, title III, § 305(d), 63 Stat. 396; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 85–800, § 4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, § 2051(a)(4), (5), (d), Oct. 13, 1994, 108 Stat. 3304.
41 U.S.C. § 4504 (PUBLIC CONTRACTS)
§ 4504. Conditions for progress payments
(a) Payment Commensurate With Work.—
The executive agency shall ensure that a payment for work in progress (including materials, labor, and other items) under a contract of an executive agency that provides for those payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide information and evidence the executive agency determines is necessary to permit the executive agency to carry out this subsection.
(b) Limitation.—
The executive agency shall ensure that progress payments referred to in subsection (a) are not made for more than 80 percent of the work accomplished under the contract as long as the executive agency has not made the contractual terms, specifications, and price definite.
(c) Application.—
This section applies to a contract in an amount greater than $25,000.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3791.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4504
41:255(e).
June 30, 1949, ch. 288, title III, § 305(e), as added Pub. L. 103–355, title II, § 2051(e), Oct. 13, 1994, 108 Stat. 3304, as amended Pub. L. 104–106, title XLIII, § 4321(a)(4), Feb. 10, 1996, 110 Stat. 671.
41 U.S.C. § 4505 (PUBLIC CONTRACTS)
§ 4505. Payments for commercial items
(a) Terms and Conditions for Payments.—
Payments under section 4501 of this title for commercial items may be made under terms and conditions that the head of the executive agency determines are appropriate or customary in the commercial marketplace and are in the best interests of the Federal Government.
(b) Security for Payments.—
The head of the executive agency shall obtain adequate security for the payments. If the security is in the form of a lien in favor of the Federal Government, the lien is paramount to all other liens and is effective immediately on the first payment, without filing, notice, or other action by the Federal Government.
(c) Limitation on Advance Payments.—
Advance payments made under section 4501 of this title for commercial items may include payments, in a total amount not more than 15 percent of the contract price, in advance of any performance of work under the contract.
(d) Nonapplication of Certain Conditions.—
The conditions of sections 4503 and 4504 of this title need not be applied if they would be inconsistent, as determined by the head of the executive agency, with commercial terms and conditions pursuant to this section.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3791.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4505
41:255(f).
June 30, 1949, ch. 288, title III, § 305(f), as added Pub. L. 103–355, title II, § 2051(e), Oct. 13, 1994, 108 Stat. 3304, as amended Pub. L. 104–106, title XLIII, § 4321(a)(4), Feb. 10, 1996, 110 Stat. 671.
41 U.S.C. § 4701 (PUBLIC CONTRACTS)
§ 4701. Determinations and decisions
(a) Individual or Class Determinations and Decisions Authorized.—
(1) In general.—
Determinations and decisions required to be made under this division by the head of an executive agency or provided in this division or chapters 1 to 11 of title 40 to be made by the Administrator of General Services or other agency head may be made for an individual purchase or contract or, except for determinations or decisions made under sections 3105, 3301, 3303 to 3305, 3306(a)–(e), and 3308, chapter 37, and section 4702 of this title or to the extent expressly prohibited by another law, for a class of purchases or contracts.
(2) Delegation.—
Except as provided in section 3304(a)(7) of this title, and except as provided in section 121(d)(1) and (2) of title 40 with respect to the Administrator of General Services, the agency head, in the discretion and subject to the direction of the agency head, may delegate powers provided by this division or chapters 1 to 11 of title 40, including the making of determinations and decisions described in paragraph (1), to other officers or officials of the agency.
(3) Finality.—
The determinations and decisions are final.
(b) Written Findings.—
(1) Basis for certain determinations.—
Each determination or decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this title shall be based on a written finding by the individual making the determination or decision. A finding under section 4503 or 4706(d)(2)(B) shall set out facts and circumstances that support the determination or decision.
(2) Finality.—
Each finding referred to in paragraph (1) is final.
(3) Maintaining copies of findings.—
The head of an executive agency shall maintain for a period of not less than 6 years a copy of each finding referred to in paragraph (1) that is made by an individual in that executive agency. The period begins on the date of the determination or decision to which the finding relates.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3793.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4701
41:257.
June 30, 1949, ch. 288, title III, § 307, 63 Stat. 396; Pub. L. 85–800, § 5, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89–343, §§ 3, 4, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98–369, title VII, § 2714(a)(4), July 18, 1984, 98 Stat. 1184; Pub. L. 104–106, title XLIII, § 4321(e)(6), Feb. 10, 1996, 110 Stat. 675; Pub. L. 104–316, title I, § 121(c), Oct. 19, 1996, 110 Stat. 3836.
41:262.
June 30, 1949, ch. 288, title III, § 312, as added Pub. L. 103–355, title I, § 1553, Oct. 13, 1994, 108 Stat. 3300.
41 U.S.C. § 4702 (PUBLIC CONTRACTS)
§ 4702. Prohibition on release of contractor proposals
(a) Definition.—
In this section, the term “proposal” means a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal.
(b) Prohibition.—
A proposal in the possession or control of an executive agency may not be made available to any person under section 552 of title 5.
(c) Nonapplication.—
Subsection (b) does not apply to a proposal that is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3794.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4702(a)
41:253b(m)(3).
June 30, 1949, ch. 288, title III, § 303B(m), as added Pub. L. 104–201, title VIII, § 821(b), Sept. 23, 1996, 110 Stat. 2609.
4702(b)
41:253b(m)(1).
4702(c)
41:253b(m)(2).
In subsection (b), the words “Except as provided in paragraph (2)” are omitted as unnecessary.
41 U.S.C. § 4704 (PUBLIC CONTRACTS)
§ 4704. Prohibition of contractors limiting subcontractor sales directly to Federal Government
(a) Contract Restrictions.—
Each contract for the purchase of property or services made by an executive agency shall provide that the contractor will not—
(1) enter into an agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the Federal Government of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Government.
(b) Rights Under Law Preserved.—
This section does not prohibit a contractor from asserting rights it otherwise has under law.
(c) Inapplicability to Certain Contracts.—
This section does not apply to a contract for an amount that is not greater than the simplified acquisition threshold.
(d) Inapplicability When Government Treated Similarly to Other Purchasers.—
An agreement between the contractor in a contract for the acquisition of commercial items and a subcontractor under the contract that restricts sales by the subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the Federal Government in violation of the provision included in the contract pursuant to subsection (a) if the agreement does not result in the Federal Government being treated differently with regard to the restriction than any other prospective purchaser of the commercial items from that subcontractor.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3795.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4704(a)
41:253g(a).
June 30, 1949, ch. 288, title III, § 303G(a), (b), formerly § 303H, as added Pub. L. 98–577, title II, § 206(a), Oct. 30, 1984, 98 Stat. 3073; renumbered § 303G, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742.
4704(b)
41:253g(b).
4704(c)
41:253g(c).
June 30, 1949, ch. 288, title III, § 303G(c), as added Pub. L. 103–355, title IV, § 4103(b), Oct. 13, 1994, 108 Stat. 3341.
4704(d)
41:253g(d).
June 30, 1949, ch. 288, title III, § 303G(d), as added Pub. L. 103–355, title VIII, § 8204(a), Oct. 13, 1994, 108 Stat. 3396.
41 U.S.C. § 4707 (PUBLIC CONTRACTS)
§ 4707. Remission of liquidated damages
When a contract made on behalf of the Federal Government by the head of a Federal agency, or by an authorized officer of the agency, includes a provision for liquidated damages for delay, the Secretary of the Treasury on recommendation of the head of the agency may remit any part of the damages as the Secretary of the Treasury believes is just and equitable.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3799.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4707
41:256a.
Sept. 5, 1950, ch. 849, § 10(a), 64 Stat. 591; Pub. L. 104–316, title II, § 202(u), Oct. 19, 1996, 110 Stat. 3845.
41 U.S.C. § 4708 (PUBLIC CONTRACTS)
§ 4708. Payment of reimbursable indirect costs in cost-type research and development contracts with educational institutions
A cost-type research and development contract (including a grant) with a university, college, or other educational institution may provide for payment of reimbursable indirect costs on the basis of predetermined fixed-percentage rates applied to the total of the reimbursable direct costs incurred or to an element of the total of the reimbursable direct costs incurred.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3799.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4708
41:254a.
Pub. L. 87–638, Sept. 5, 1962, 76 Stat. 437.
The words “On and after September 5, 1962” are omitted as obsolete.
41 U.S.C. § 4709 (PUBLIC CONTRACTS)
§ 4709. Implementation of electronic commerce capability
(a) Role of Head of Executive Agency.—
The head of each executive agency shall implement the electronic commerce capability required by section 2301 of this title. In implementing the capability, the head of an executive agency shall consult with the Administrator.
(b) Program Manager.—
The head of each executive agency shall designate a program manager to implement the electronic commerce capability for the agency. The program manager reports directly to an official at a level not lower than the senior procurement executive designated for the agency under section 1702(c) of this title.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3800.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4709
41:252c.
June 30, 1949, ch. 288, title III, § 302C, as added Pub. L. 103–355, title IX, § 9003, Oct. 13, 1994, 108 Stat. 3403; Pub. L. 105–85, title VIII, § 850(f)(4)(A), Nov. 18, 1997, 111 Stat. 1850.
41 U.S.C. § 4710 (PUBLIC CONTRACTS)
§ 4710. Limitations on tiering of subcontractors
(a) Definition.—
In this section, the term “executive agency” has the same meaning given in section 133 of this title.
(b) Regulations.—
For executive agencies other than the Department of Defense, the Federal Acquisition Regulation shall—
(1) require contractors to minimize the excessive use of subcontractors, or of tiers of subcontractors, that add no or negligible value; and
(2) ensure that neither a contractor nor a subcontractor receives indirect costs or profit on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no or negligible value (but not to limit charges for indirect costs and profit based on the direct costs of managing lower-tier subcontracts).
(c) Covered Contracts.—
This section applies to any cost-reimbursement type contract or task or delivery order in an amount greater than the simplified acquisition threshold (as defined by section 134 of this title).
(d) Rule of Construction.—
Nothing in this section shall be construed as limiting the ability of the Department of Defense to implement more restrictive limitations on the tiering of subcontractors.
(e) Applicability.—
The Department of Defense shall continue to be subject to guidance on limitations on tiering of subcontractors issued by the Department of Defense pursuant to section 852 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364, 10 U.S.C. 2324 note).
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3800.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4710
41:254b note.
Pub. L. 110–417, [div. A], title VIII, § 866, Oct. 14, 2008, 122 Stat. 4551.
In subsection (b), the words “Not later than one year after the date of the enactment of this Act” are omitted because of section 6(f) of the bill. The word “shall” is substituted for the words “shall be amended” to reflect the permanence of the provision.
41 U.S.C. § 6103 (PUBLIC CONTRACTS)
§ 6103. Opening of bids
Whenever proposals for supplies have been solicited, the parties responding to the solicitation shall be notified of the time and place of the opening of the bids, and be permitted to be present either in person or by attorney. A record of each bid shall be made at the time and place of the opening of the bids.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3803.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
6103
41:8.
R.S. § 3710.
41 U.S.C. § 6301 (PUBLIC CONTRACTS)
§ 6301. Authorization requirement
(a) In General.—
A contract or purchase on behalf of the Federal Government shall not be made unless the contract or purchase is authorized by law or is under an appropriation adequate to its fulfillment.
(b) Exception.—
(1) Definition.—
In this subsection, the term “defined Secretary” means—
(A) the Secretary of Defense; or
(B) the Secretary of Homeland Security with respect to the Coast Guard when the Coast Guard is not operating as a service in the Navy.
(2) In general.—
Subsection (a) does not apply to a contract or purchase made by a defined Secretary for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies.
(3) Current year limitation.—
A contract or purchase made by a defined Secretary under this subsection may not exceed the necessities of the current year.
(4) Reports.—
The defined Secretary shall immediately advise Congress when authority is exercised under this subsection. The defined Secretary shall report quarterly on the estimated obligations incurred pursuant to the authority granted in this subsection.
(c) Special Rule for Purchase of Land.—
Land may not be purchased by the Federal Government unless the purchase is authorized by law.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3803; Pub. L. 111–281, title IX, § 903(a)(4), Oct. 15, 2010, 124 Stat. 3010.)
heading: Amendment Not Shown in Text
text: Subsecs. (a) and (b) of this section are derived from section 11 of former Title 41, Public Contracts, which was amended by Pub. L. 111–281, title IX, § 903(a)(4), Oct. 15, 2010, 124 Stat. 3010, prior to being repealed and reenacted as subsecs. (a) and (b) of this section by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 903 of Pub. L. 111–281 provided that, effective with the enactment of Pub. L. 109–241, section 902(c) of Pub. L. 109–241, which amended section 3732 of the Revised Statutes, is amended by inserting in the directory language, “of the United States” after “Revised Statutes”, resulting in no change in text.
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
6301(a)
41:11(a) (words before 2nd comma).
R.S. § 3732; Pub. L. 89–687, title VI, § 612(e), Oct. 15, 1966, 80 Stat. 993; Pub. L. 98–557, § 17(e)(1), (2), Oct. 30, 1984, 98 Stat. 2868; Pub. L. 104–106, div. D, title XLIII, § 4322(b)(4), Feb. 10, 1996, 110 Stat. 677; Pub. L. 109–241, title IX, § 902(c), July 11, 2006, 120 Stat. 566.
6301(b)
41:11(a) (words after 2nd comma), (b).
6301(c)
41:14.
R.S. § 3736.
In subsection (b)(1)(A), the words “Secretary of Defense” are substituted for “Department of Defense” because of 10:113.
In subsection (b)(1)(B), the words “Secretary of Homeland Security” are substituted for “Department of Homeland Security” because of section 102(a)(2) of the Homeland Security Act of 2002 (6 U.S.C. 112(a)(2)).
41 U.S.C. § 6302 (PUBLIC CONTRACTS)
§ 6302. Contracts for fuel made by Secretary of the Army
The Secretary of the Army, when the Secretary believes it is in the interest of the United States, may enter into contracts and incur obligations for fuel in sufficient quantities to meet the requirements for one year without regard to the current fiscal year. Amounts appropriated for the fiscal year in which the contract is made or amounts appropriated or which may be appropriated for the following fiscal year may be used to pay for supplies delivered under a contract made pursuant to this section.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3804.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
6302
41:11a.
June 30, 1921, ch. 33, § 1 (last proviso on p. 78), 42 Stat. 78.
The words “Secretary of the Army” are substituted for “Secretary of War” because of section 205(a) of the National Security Act of 1947 (ch. 343, 61 Stat. 501). Section 205(a) was repealed by section 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 676). Section 1 of the Act of August 10, 1956 (70A Stat. 1) enacted Title 10, “Armed Forces”, and under sections 3011 to 3013 of title 10, the Department of the Army remains under the administrative supervision of the Secretary of the Army.
41 U.S.C. § 6303 (PUBLIC CONTRACTS)
§ 6303. Certain contracts limited to appropriated amounts
A contract to erect, repair, or furnish a public building, or to make any public improvement, shall not be made on terms requiring the Federal Government to pay more than the amount specifically appropriated for the activity covered by the contract.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3804.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
6303
41:12.
R.S. § 3733.
The words “the activity covered by the contract” are substituted for “the specific purpose” for clarity.
41 U.S.C. § 6304 (PUBLIC CONTRACTS)
§ 6304. Certain contracts limited to one-year term
Except as otherwise provided, an executive department shall not make a contract for stationery or other supplies for a term longer than one year from the time the contract is made.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3804.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
6304
41:13.
R.S. § 3735.
The words “an executive department shall not” are substituted for “it shall not be lawful for any of the executive departments to” to state the legal prohibition directly and to eliminate unnecessary words.