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41 U.S.C. § 3901 (PUBLIC CONTRACTS)
§ 3901. Contracts awarded using procedures other than sealed-bid procedures
(a) Authorized Types.—
Except as provided in section 3905 of this title, contracts awarded after using procedures other than sealed-bid procedures may be of any type which in the opinion of the agency head will promote the best interests of the Federal Government.
(b) Required Warranty.—
(1) Content.—
Every contract awarded after using procedures other than sealed-bid procedures shall contain a suitable warranty, as determined by the agency head, by the contractor that no person or selling agency has been employed or retained to solicit or secure the contract on an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for bona fide employees or bona fide established commercial or selling agencies the contractor maintains to secure business.
(2) Remedy for breach or violation.—
For the breach or violation of the warranty, the Federal Government may annul the contract without liability or deduct from the contract price or consideration the full amount of the commission, percentage, brokerage, or contingent fee.
(3) Nonapplication.—
Paragraph (1) does not apply to a contract for an amount that is not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3774.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3901
41:254(a).
June 30, 1949, ch. 288, title III, § 304(a), 63 Stat. 395; Pub. L. 98–369, div. B, title VII, § 2714(a)(3)(A), (B), July 18, 1984, 98 Stat. 1184; Pub. L. 103–355, title IV, § 4103(c), title VIII, § 8204(b), Oct. 13, 1994, 108 Stat. 3341, 3396.
In subsection (b)(2), the words “in its discretion” are omitted as unnecessary.
41 U.S.C. § 3902 (PUBLIC CONTRACTS)
§ 3902. Severable services contracts for periods crossing fiscal years
(a) Authority To Enter Into Contract.—
The head of an executive agency may enter into a contract for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed one year.
(b) Obligation of Funds.—
Funds made available for a fiscal year may be obligated for the total amount of a contract entered into under the authority of this section.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3774.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3902
41:253l.
June 30, 1949, ch. 288, title III, § 303L, as added Pub. L. 103–355, title I, § 1073, Oct. 13, 1994, 108 Stat. 3271, as amended Pub. L. 104–106, title XLIII, § 4321(a)(1), Feb. 10, 1996, 110 Stat. 671.
41 U.S.C. § 3903 (PUBLIC CONTRACTS)
§ 3903. Multiyear contracts
(a) Definition.—
In this section, a multiyear contract is a contract for the purchase of property or services for more than one, but not more than 5, program years.
(b) Authority To Enter Into Contract.—
An executive agency may enter into a multiyear contract for the acquisition of property or services if—
(1) funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract; and
(2) the executive agency determines that—
(A) the need for the property or services is reasonably firm and continuing over the period of the contract; and
(B) a multiyear contract will serve the best interests of the Federal Government by encouraging full and open competition or promoting economy in administration, performance, and operation of the agency’s programs.
(c) Termination Clause.—
A multiyear contract entered into under the authority of this section shall include a clause that provides that the contract shall be terminated if funds are not made available for the continuation of the contract in a fiscal year covered by the contract. Funds available for paying termination costs shall remain available for that purpose until the costs associated with termination of the contract are paid.
(d) Cancellation Ceiling Notice.—
Before a contract described in subsection (b) that contains a clause setting forth a cancellation ceiling in excess of $10,000,000 may be awarded, the executive agency shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to Congress. The contract may not be awarded until the end of the 30-day period beginning on the date of the notification.
(e) Contingency Clause for Appropriation of Funds.—
A multiyear contract may provide that performance under the contract after the first year of the contract is contingent on the appropriation of funds and (if the contract does so provide) that a cancellation payment shall be made to the contractor if the funds are not appropriated.
(f) Other Law Not Affected.—
This section does not modify or affect any other provision of law that authorizes multiyear contracts.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3774.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3903(a)
41:254c(d) (1st sentence).
June 30, 1949, ch. 288, title III, § 304B, as added Pub. L. 103–355, title I, § 1072, Oct. 13, 1994, 108 Stat. 3270.
3903(b)
41:254c(a).
3903(c)
41:254c(b).
3903(d)
41:254c(c).
3903(e)
41:254c(d) (last sentence).
3903(f)
41:254c(e).
41 U.S.C. § 3905 (PUBLIC CONTRACTS)
§ 3905. Cost contracts
(a) Cost-Plus-A-Percentage-Of-Cost Contracts Disallowed.—
The cost-plus-a-percentage-of-cost system of contracting shall not be used.
(b) Cost-Plus-A-Fixed-Fee Contracts.—
(1) In general.—
Except as provided in paragraphs (2) and (3), the fee in a cost-plus-a-fixed-fee contract shall not exceed 10 percent of the estimated cost of the contract, not including the fee, as determined by the agency head at the time of entering into the contract.
(2) Experimental, developmental, or research work.—
The fee in a cost-plus-a-fixed-fee contract for experimental, developmental, or research work shall not exceed 15 percent of the estimated cost of the contract, not including the fee.
(3) Architectural or engineering services.—
The fee in a cost-plus-a-fixed-fee contract for architectural or engineering services relating to any public works or utility project may include the contractor’s costs and shall not exceed 6 percent of the estimated cost, not including the fee, as determined by the agency head at the time of entering into the contract, of the project to which the fee applies.
(c) Notification.—
All cost and cost-plus-a-fixed-fee contracts shall provide for advance notification by the contractor to the procuring agency of any subcontract on a cost-plus-a-fixed-fee basis and of any fixed-price subcontract or purchase order which exceeds in dollar amount either the simplified acquisition threshold or 5 percent of the total estimated cost of the prime contract.
(d) Right To Audit.—
A procuring agency, through any authorized representative thereof, has the right to inspect the plans and to audit the books and records of a prime contractor or subcontractor engaged in the performance of a cost or cost-plus-a-fixed-fee contract.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3776.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3905(a)
41:254(b) (1st sentence words before 1st comma).
June 30, 1949, ch. 288, title III, § 304(b), 63 Stat. 395; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 103–355, title I, § 1071, title IV, § 4402(c), title X, § 10005(e), Oct. 13, 1994, 108 Stat. 3270, 3349, 3408.
3905(b)
41:254(b) (1st sentence words after 1st comma).
3905(c)
41:254(b) (last sentence words before semicolon).
3905(d)
41:254(b) (last sentence words after semicolon).
41 U.S.C. § 3906 (PUBLIC CONTRACTS)
§ 3906. Cost-reimbursement contracts
(a) Definition.—
In this section, the term “executive agency” has the same meaning given in section 133 of this title.
(b) Regulations on the Use of Cost-Reimbursement Contracts.—
The Federal Acquisition Regulation shall address the use of cost-reimbursement contracts.
(c) Content.—
The regulations promulgated under subsection (b) shall include guidance regarding—
(1) when and under what circumstances cost-reimbursement contracts are appropriate;
(2) the acquisition plan findings necessary to support a decision to use cost-reimbursement contracts; and
(3) the acquisition workforce resources necessary to award and manage cost-reimbursement contracts.
(d) Annual Report.—
(1) In general.—
The Director of the Office of Management and Budget shall submit an annual report to Congressional committees identified in subsection (e) on the use of cost-reimbursement contracts and task or delivery orders by all executive agencies.
(2) Contents.—
The report shall include—
(A) the total number and value of contracts awarded and orders issued during the covered fiscal year;
(B) the total number and value of cost-reimbursement contracts awarded and orders issued during the covered fiscal year; and
(C) an assessment of the effectiveness of the regulations promulgated pursuant to subsection (b) in ensuring the appropriate use of cost-reimbursement contracts.
(3) Time requirements.—
(A) Deadline.—
The report shall be submitted no later than March 1 and shall cover the fiscal year ending September 30 of the prior year.
(B) Limitation.—
The report shall be submitted from March 1, 2009, until March 1, 2014.
(e) Congressional Committees.—
The report required by subsection (d) shall be submitted to—
(1) the Committee on Oversight and Government Reform of the House of Representatives;
(2) the Committee on Homeland Security and Governmental Affairs of the Senate;
(3) the Committees on Appropriations of the House of Representatives and the Senate; and
(4) in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3777.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3906
41:254 note.
Pub. L. 110–417, [div. A], title VIII, § 864(a), (b), (d), (e), (f)(2), (g), Oct. 14, 2008, 122 Stat. 4549.
In subsection (b), the words “Not later than 270 days after the date of the enactment of this Act” are omitted because of section 6(f) of the bill. The words “shall address” are substituted for “shall be revised to address” to reflect the permanence of the provision.
In subsection (d), the words “Subject to subsection (f)” are omitted as unnecessary.
heading: Amendment of Federal Acquisition Regulation
text: Pub. L. 111–350, § 6(f)(5), Jan. 4, 2011, 124 Stat. 3855, provided that: “The Federal Acquisition Regulation shall be amended to meet the requirements of section 3906(b) of title 41, United States Code, not later than 270 days after October 14, 2008.”
41 U.S.C. § 4101 (PUBLIC CONTRACTS)
§ 4101. Definitions
In this chapter:
(1) Delivery order contract.—
The term “delivery order contract” means a contract for property that—
(A) does not procure or specify a firm quantity of property (other than a minimum or maximum quantity); and
(B) provides for the issuance of orders for the delivery of property during the period of the contract.
(2) Task order contract.—
The term “task order contract” means a contract for services that—
(A) does not procure or specify a firm quantity of services (other than a minimum or maximum quantity); and
(B) provides for the issuance of orders for the performance of tasks during the period of the contract.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3778.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4101
41:253k.
June 30, 1949, ch. 288, title III, § 303K, as added Pub. L. 103–355, title I, § 1054(a), Oct. 13, 1994, 108 Stat. 3265.
41 U.S.C. § 4102 (PUBLIC CONTRACTS)
§ 4102. Authorities or responsibilities not affected
This chapter does not modify or supersede, and is not intended to impair or restrict, authorities or responsibilities under sections 1101 to 1104 of title 40.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3778.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4102
41:253h note.
Pub. L. 103–355, § 1054(b), Oct. 13, 1994, 108 Stat. 3265.
The text of section 1054(b)(1) of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103–355, 41:253h note) is omitted as obsolete.
41 U.S.C. § 4104 (PUBLIC CONTRACTS)
§ 4104. Guidance on use of task and delivery order contracts
(a) Guidance in Federal Acquisition Regulation.—
The Federal Acquisition Regulation issued in accordance with sections 1121(b) and 1303(a)(1) of this title shall provide guidance to agencies on the appropriate use of task and delivery order contracts in accordance with this chapter and sections 2304a to 2304d of title 10.
(b) Content of Regulations.—
The regulations issued pursuant to subsection (a) at a minimum shall provide specific guidance on—
(1) the appropriate use of Government-wide and other multiagency contracts entered into in accordance with this chapter and sections 2304a to 2304d of title 10; and
(2) steps that agencies should take in entering into and administering multiple award task and delivery order contracts to ensure compliance with the requirement in—
(A) section 11312 of title 40 for capital planning and investment control in purchases of information technology products and services;
(B) section 4106(c) of this title and section 2304c(b) of title 10 to ensure that all contractors are afforded a fair opportunity to be considered for the award of task and delivery orders; and
(C) section 4106(e) of this title and section 2304c(c) of title 10 for a statement of work in each task or delivery order issued that clearly specifies all tasks to be performed or property to be delivered under the order.
(c) Federal Supply Schedules Program.—
The Administrator for Federal Procurement Policy shall consult with the Administrator of General Services to assess the effectiveness of the multiple awards schedule program of the General Services Administration referred to in section 152(3) of this title that is administered as the Federal Supply Schedules program. The assessment shall include examination of—
(1) the administration of the program by the Administrator of General Services; and
(2) the ordering and program practices followed by Federal customer agencies in using schedules established under the program.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3780.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4104
41:253h note.
Pub. L. 106–65, div. A, title VIII, § 804, Oct. 5, 1999, 113 Stat. 704.
In this section, the text of section 804(d) of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106–65, 41:253h note) is omitted as obsolete.
In subsection (a), the words “Not later than 180 days after the date of the enactment of this Act” and “be revised to” are omitted as obsolete.
In subsection (b)(1), the words “this chapter and sections 2304a to 2304d of title 10” are substituted for “the provisions of law referred to in that subsection” for clarity.
41 U.S.C. § 4301 (PUBLIC CONTRACTS)
§ 4301. Definitions
In this chapter:
(1) Compensation.—
The term “compensation”, for a fiscal year, means the total amount of wages, salary, bonuses, and deferred compensation for the fiscal year, whether paid, earned, or otherwise accruing, as recorded in an employer’s cost accounting records for the fiscal year.
(2) Covered contract.—
The term “covered contract” means a contract for an amount in excess of $500,000 that is entered into by an executive agency, except that the term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial items.
(3) Fiscal year.—
The term “fiscal year” means a fiscal year established by a contractor for accounting purposes.
(4) Senior executive.—
The term “senior executive”, with respect to a contractor, means the 5 most highly compensated employees in management positions at each home office and each segment of the contractor.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3784.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4301(1)
41:256(m)(1).
June 30, 1949, ch. 288, title III, § 306(m), as added Pub. L. 105–85, title VIII, § 808(b)(2), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 105–261, title VIII, § 804(b), Oct. 17, 1998, 112 Stat. 2083.
4301(2)
41:256(l)(1).
June 30, 1949, ch. 288, title III, § 306(l)(1), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3315.
4301(3)
41:256(m)(3).
4301(4)
41:256(m)(2).
41 U.S.C. § 4302 (PUBLIC CONTRACTS)
§ 4302. Adjustment of threshold amount of covered contract
Effective on October 1 of each year that is divisible by 5, the amount set forth in section 4301(2) of this title shall be adjusted to the equivalent amount in constant fiscal year 1994 dollars. An adjusted amount that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. If an amount is evenly divisible by $25,000 but is not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3784.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4302
41:256(l)(2).
June 30, 1949, ch. 288, title III, § 306(l)(2), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3315.
41 U.S.C. § 4305 (PUBLIC CONTRACTS)
§ 4305. Required regulations
(a) In General.—
The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Those provisions shall define in detail and in specific terms the costs that are unallowable, in whole or in part, under covered contracts.
(b) Specific Items.—
The regulations shall, at a minimum, clarify the cost principles applicable to contractor costs of the following:
(1) Air shows.
(2) Membership in civic, community, and professional organizations.
(3) Recruitment.
(4) Employee morale and welfare.
(5) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids).
(6) Community relations.
(7) Dining facilities.
(8) Professional and consulting services, including legal services.
(9) Compensation.
(10) Selling and marketing.
(11) Travel.
(12) Public relations.
(13) Hotel and meal expenses.
(14) Expense of corporate aircraft.
(15) Company-furnished automobiles.
(16) Advertising.
(17) Conventions.
(c) Additional Requirements.—
(1) When questioned costs may be resolved.—
The Federal Acquisition Regulation shall require that a contracting officer not resolve any questioned costs until the contracting officer has obtained—
(A) adequate documentation of those costs; and
(B) the opinion of the contract auditor on the allowability of those costs.
(2) Presence of contract auditor.—
The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, a contract auditor be present at any negotiation or meeting with the contractor regarding a determination of the allowability of indirect costs of the contractor.
(3) Settlement to reflect amount of individual questioned costs.—
The Federal Acquisition Regulation shall require that all categories of costs designated in the report of a contract auditor as questioned with respect to a proposal for settlement be resolved in a manner so that the amount of the individual questioned costs that are paid will be reflected in the settlement.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3787.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4305(a)
41:256(f)(1) (1st, 2d sentences).
June 30, 1949, ch. 288, title III, § 306(f), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3312.
4305(b)
41:256(f)(1) (last sentence).
4305(c)
41:256(f)(2)–(4).
41 U.S.C. § 4306 (PUBLIC CONTRACTS)
§ 4306. Applicability of regulations to subcontractors
The regulations referred to in sections 4304 and 4305(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of those regulations to all subcontractors of the covered contract.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4306
41:256(g).
June 30, 1949, ch. 288, title III, § 306(g), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313.
41 U.S.C. § 4307 (PUBLIC CONTRACTS)
§ 4307. Contractor certification
(a) Content and Form.—
A proposal for settlement of indirect costs applicable to a covered contract shall include a certification by an official of the contractor that, to the best of the certifying official’s knowledge and belief, all indirect costs included in the proposal are allowable. The certification shall be in a form prescribed in the Federal Acquisition Regulation.
(b) Waiver.—
An executive agency may, in an exceptional case, waive the requirement for certification under subsection (a) in the case of a contract if the agency—
(1) determines that it would be in the interest of the Federal Government to waive the certification; and
(2) states in writing the reasons for the determination and makes the determination available to the public.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4307
41:256(h).
June 30, 1949, ch. 288, title III, § 306(h), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313.
41 U.S.C. § 4308 (PUBLIC CONTRACTS)
§ 4308. Penalties for submission of cost known to be unallowable
The submission to an executive agency of a proposal for settlement of costs for any period after those costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that the cost is unallowable, is subject to section 287 of title 18 and section 3729 of title 31.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4308
41:256(i).
June 30, 1949, ch. 288, title III, § 306(i), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313.
41 U.S.C. § 4309 (PUBLIC CONTRACTS)
§ 4309. Burden of proof on contractor
In a proceeding before a board of contract appeals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a contractor seeks reimbursement from the Federal Government is in issue, the burden of proof is on the contractor to establish that those costs are reasonable.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
4309
41:256(j).
June 30, 1949, ch. 288, title III, § 306(j), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313.