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41 U.S.C. § 3312 (PUBLIC CONTRACTS)
§ 3312. Database on price trends of items and services under Federal contracts
(a) Database Required.—
The Administrator shall establish and maintain a database of information on price trends for items and services under contracts with the Federal Government. The information in the database shall be designed to assist Federal acquisition officials in the following:
(1) Monitoring developments in price trends for items and services under contracts with the Federal Government.
(2) Conducting price or cost analyses for items and services under offers for contracts with the Federal Government, or otherwise conducting determinations of the reasonableness of prices for items and services under such offers, and addressing unjustified escalation in prices being paid by the Federal Government for items and services under contracts with the Federal Government.
(b) Use.—
(1) The database under subsection (a) shall be available to executive agencies in the evaluation of offers for contracts with the Federal Government for items and services.
(2) The Secretary of Defense may satisfy the requirements of this section by complying with the requirements of section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2306a note).
(Added Pub. L. 112–239, div. A, title VIII, § 851(a)(1), Jan. 2, 2013, 126 Stat. 1855.)
heading: References in Text
text: Section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (b)(2), is section 892 of Pub. L. 111–383, which is set out as a note under section 2306a of Title 10, Armed Forces.
heading: Use of Elements of Department of Defense Pilot Project
text: Pub. L. 112–239, div. A, title VIII, § 851(b), Jan. 2, 2013, 126 Stat. 1855, provided that: “In establishing the database required by section 3312 of title 41, United States Code (as added by subsection (a)), the Administrator for Federal Procurement Policy shall use and incorporate appropriate elements of the pilot project on pricing being carried out by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 [Pub. L. 111–383] (10 U.S.C. 2306a note) and the Better Buying Power initiative of the Secretary of Defense.”
41 U.S.C. § 3501 (PUBLIC CONTRACTS)
§ 3501. General
(a) Definitions.—
In this chapter:
(1) Commercial item.—
The term “commercial item” has the meaning provided the term by section 103 of this title.
(2) Cost or pricing data.—
The term “cost or pricing data” means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification) or, if applicable consistent with section 3506(a)(2) of this title, another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. The term does not include information that is judgmental, but does include factual information from which a judgment was derived.
(3) Subcontract.—
The term “subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or a subcontractor.
(b) Regulations.—
(1) Minimizing abuse of commercial services item authority.—
The Federal Acquisition Regulation shall ensure that services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, may be treated as commercial items for purposes of this chapter only if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for the services.
(2) Information to submit.—
To the extent necessary to make a determination under paragraph (1), the contracting officer may request the offeror to submit—
(A) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and
(B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3764.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3501(a)
41:254b(h).
June 30, 1949, ch. 288, title III, § 304A(h), formerly § 304A(i), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3284; redesignated as § 304A(h), Pub. L. 104–106, title XLII, § 4201(b)(2)(B), Feb. 10, 1996, 110 Stat. 652.
3501(b)
41:254b note.
Pub. L. 110–417, [div. A], title VIII, § 868, Oct. 14, 2008, 122 Stat. 4552.
Subsection (a) of Pub. L. 110–417, § 868 is omitted as unnecessary.
In subsection (b)(1), the words “The Federal Acquisition Regulation” are substituted for “The regulations modified pursuant to subsection (a)” for clarity and conformity with the revised title.
41 U.S.C. § 3503 (PUBLIC CONTRACTS)
§ 3503. Exceptions
(a) In General.—
Submission of certified cost or pricing data shall not be required under section 3502 of this title in the case of a contract, a subcontract, or a modification of a contract or subcontract—
(1) for which the price agreed on is based on—
(A) adequate price competition; or
(B) prices set by law or regulation;
(2) for the acquisition of a commercial item; or
(3) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this chapter may be waived and justifies in writing the reasons for the determination.
(b) Modifications of Contracts and Subcontracts for Commercial Items.—
In the case of a modification of a contract or subcontract for a commercial item that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1) or (2) of subsection (a), submission of certified cost or pricing data shall not be required under section 3502 of this title if—
(1) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1) or (2) of subsection (a); and
(2) the modification would not change the contract or subcontract from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3766.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3503
41:254b(b).
June 30, 1949, ch. 288, title III, § 304A(b), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3279; Pub. L. 104–106, title XLII, § 4201(b)(1), Feb. 10, 1996, 110 Stat. 651.
In subsection (b)(2), the words “as the case may be” are omitted as unnecessary.
41 U.S.C. § 3504 (PUBLIC CONTRACTS)
§ 3504. Cost or pricing data on below-threshold contracts
(a) Authority To Require Submission.—
Subject to subsection (b), when certified cost or pricing data are not required to be submitted by section 3502 of this title for a contract, subcontract, or modification of a contract or subcontract, the data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that the data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires the data to be submitted under this section, the head of the procuring activity shall justify in writing the reason for the requirement.
(b) Exception.—
The head of the procuring activity may not require certified cost or pricing data to be submitted under this section for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in section 3503(a)(1) or (2) of this title.
(c) Delegation of Authority Prohibited.—
The head of a procuring activity may not delegate the functions under this section.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3767.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3504
41:254b(c).
June 30, 1949, ch. 288, title III, § 304A(c), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3280; Pub. L. 104–106, title XLII, §§ 4201(b)(1), 4321(e)(3), Feb. 10, 1996, 110 Stat. 651, 675.
41 U.S.C. § 3505 (PUBLIC CONTRACTS)
§ 3505. Submission of other information
(a) Authority To Require Submission.—
When certified cost or pricing data are not required to be submitted under this chapter for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in section 3503(a)(1) of this title, the contracting officer shall require that the data submitted include, at a minimum, appropriate information on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement.
(b) Limitations on Authority.—
The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under subsection (a):
(1) Reasonable limitations.—
Reasonable limitations on requests for sales data relating to commercial items.
(2) Limitation on scope of request.—
A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial items from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations.
(3) Information not to be disclosed.—
A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3767.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3505
41:254b(d).
June 30, 1949, ch. 288, title III, § 304A(d), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3281; Pub. L. 104–106, title XLII, §§ 4201(b)(1), 4321(e)(4), Feb. 10, 1996, 110 Stat. 652, 675; Pub. L. 105–261, div. A, title VIII, § 808(b), Oct. 17, 1998, 112 Stat. 2085.
41 U.S.C. § 3507 (PUBLIC CONTRACTS)
§ 3507. Interest and penalties for certain overpayments
(a) In General.—
If the Federal Government makes an overpayment to a contractor under a contract with an executive agency subject to this chapter and the overpayment was due to the submission by the contractor of defective cost or pricing data, the contractor shall be liable to the Federal Government—
(1) for interest on the amount of the overpayment, to be computed—
(A) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of the overpayment to the Federal Government; and
(B) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621); and
(2) if the submission of the defective data was a knowing submission, for an additional amount equal to the amount of the overpayment.
(b) Liability Not Affected by Refusal To Submit Certification.—
Any liability under this section of a contractor that submits cost or pricing data but refuses to submit the certification required by section 3502(b) of this title with respect to the cost or pricing data is not affected by the refusal to submit the certification.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3769.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3507
41:254b(f).
June 30, 1949, ch. 288, title III, § 304A(f), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3283.
41 U.S.C. § 3508 (PUBLIC CONTRACTS)
§ 3508. Right to examine contractor records
For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this chapter, an executive agency shall have the authority provided by section 4706(b)(2) of this title.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3770.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3508
41:254b(g).
June 30, 1949, ch. 288, title III, § 304A(g), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3283.
41 U.S.C. § 3509 (PUBLIC CONTRACTS)
§ 3509. Notification of violations of Federal criminal law or overpayments
(a) Definition.—
In this section, the term “covered contract” means any contract in an amount greater than $5,000,000 and more than 120 days in duration.
(b) Federal Acquisition Regulation.—
The Federal Acquisition Regulation shall include, pursuant to FAR Case 2007–006 (as published at 72 Fed. Reg. 64019, November 14, 2007) or any follow-on FAR case, provisions that require timely notification by Federal contractors of violations of Federal criminal law or overpayments in connection with the award or performance of covered contracts or subcontracts, including those performed outside the United States and those for commercial items.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3770.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3509
41:251 note.
Pub. L. 110–252, title VI, §§ 6102, 6103, June 30, 2008, 122 Stat. 2386, 2387.
In subsection (b), the words “shall include” are substituted for “shall be amended” and “to include” to reflect the permanence of the provision. The words “within 180 days after the date of the enactment of this Act” are omitted as obsolete.
41 U.S.C. § 3702 (PUBLIC CONTRACTS)
§ 3702. Sealed bids
(a) Opening of Bids.—
Sealed bids shall be opened publicly at the time and place stated in the solicitation.
(b) Criteria for Awarding Contract.—
The executive agency shall evaluate the bids in accordance with section 3701(a) of this title without discussions with the bidders and, except as provided in section 3701(b) of this title, shall award a contract with reasonable promptness to the responsible source whose bid conforms to the solicitation and is most advantageous to the Federal Government, considering only price and the other price-related factors included in the solicitation.
(c) Notice of Award.—
The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the successful bidder. Within 3 days after the date of contract award, the executive agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3770.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3702(a)
41:253b(c) (1st sentence).
June 30, 1949, ch. 288, title III, § 303B(c), as added Pub. L. 98–369, title VII, § 2711(a)(2), July 18, 1984, 98 Stat. 1179; Pub. L. 103–355, title I, §§ 1061(c)(2), 1063(a), Oct. 13, 1994, 108 Stat. 3267, 3268.
3702(b)
41:253b(c) (2d sentence).
3702(a)
41:253b(c) (3d, last sentences).
41 U.S.C. § 3703 (PUBLIC CONTRACTS)
§ 3703. Competitive proposals
(a) Evaluation and Award.—
An executive agency shall evaluate competitive proposals in accordance with section 3701(a) of this title and may award a contract—
(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or
(2) based on the proposals received and without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title, the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions unless discussions are determined to be necessary.
(b) Limit on Number of Proposals.—
If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with those criteria.
(c) Criteria for Awarding Contract.—
Except as otherwise provided in section 3701(b) of this title, the executive agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the Federal Government, considering only cost or price and the other factors included in the solicitation.
(d) Notice of Award.—
The executive agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to that source and, within 3 days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3771.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3703(a)
41:253b(d)(1).
June 30, 1949, ch. 288, title III, § 303B(d), as added Pub. L. 98–369, title VII, § 2711(a)(2), July 18, 1984, 98 Stat. 1180; Pub. L. 103–355, title I, §§ 1061(c)(3), 1063(b), Oct. 13, 1994, 108 Stat. 3267, 3268; Pub. L. 104–106, title XLI, § 4103(b), Feb. 10, 1996, 110 Stat. 644.
3703(b)
41:253b(d)(2).
3703(c)
41:253b(d)(3) (1st sentence).
3703(d)
41:253b(d)(3) (last sentence).
41 U.S.C. § 3705 (PUBLIC CONTRACTS)
§ 3705. Pre-award debriefings
(a) Request for Debriefing.—
When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes that offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within 3 days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award.
(b) When Debriefing To Be Conducted.—
The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Federal Government to conduct a debriefing at that time.
(c) Precondition for Post-Award Debriefing.—
The contracting officer is required to debrief an excluded offeror in accordance with section 3704 of this title only if that offeror requested and was refused a pre-award debriefing under subsections (a) and (b).
(d) Information To Be Provided.—
The debriefing conducted under this section shall include—
(1) the executive agency’s evaluation of the significant elements in the offeror’s offer;
(2) a summary of the rationale for the offeror’s exclusion; and
(3) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(e) Information Not To Be Disclosed.—
The debriefing conducted pursuant to this section may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors’ proposals.
(f) Summary To Be Included in File.—
The contracting officer shall include a summary of the debriefing in the contract file.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3772.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3705(a)
41:253b(f)(1) (1st sentence).
June 30, 1949, ch. 288, title III, § 303B(f), (g) (related to § 303B(f)), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645.
3705(b)
41:253b(f)(1) (last sentence).
3705(c)
41:253b(f)(2).
3705(d)
41:253b(f)(3).
3705(e)
41:253b(f)(4).
3705(f)
41:253b(g) (related to 41:253b(f)).
41 U.S.C. § 3706 (PUBLIC CONTRACTS)
§ 3706. Encouragement of alternative dispute resolution
The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3706
41:253b(h).
June 30, 1949, ch. 288, title III, § 303B(h), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645.
41 U.S.C. § 3707 (PUBLIC CONTRACTS)
§ 3707. Antitrust violations
If the agency head considers that a bid or proposal evidences a violation of the antitrust laws, the agency head shall refer the bid or proposal to the Attorney General for appropriate action.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3707
41:253b(i).
June 30, 1949, ch. 288, title III, § 303B(i), formerly § 303B(e), as added Pub. L. 98–369, title VII, § 2711(a)(2), July 18, 1984, 98 Stat. 1180; redesignated as § 303B(f), Pub. L. 103–355, title I, § 1064(1), Oct. 13, 1994, 108 Stat. 3268; redesignated as § 303B(i), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645.
41 U.S.C. § 3708 (PUBLIC CONTRACTS)
§ 3708. Protests
(a) Protest File.—
(1) Establishment and access.—
If, in the case of a solicitation for a contract issued by, or an award or proposed award of a contract by, the head of an executive agency, a protest is filed pursuant to the procedures in subchapter V of chapter 35 of title 31, and an actual or prospective offeror requests, a file of the protest shall be established by the procuring activity and reasonable access shall be provided to actual or prospective offerors.
(2) Redacted information.—
Information exempt from disclosure under section 552 of title 5 may be redacted in a file established pursuant to paragraph (1) unless an applicable protective order provides otherwise.
(b) Agency Actions on Protests.—
If, in connection with a protest, the head of an executive agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the executive agency may—
(1) take any action set out in subparagraphs (A) to (F) of subsection (b)(1) of section 3554 of title 31; and
(2) pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of section 3554(c).
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3708(a)
41:253b(k).
June 30, 1949, ch. 288, title III, § 303B(k), formerly § 303B(h), as added Pub. L. 103–355, title I, § 1065, Oct. 13, 1994, 108 Stat. 3269; redesignated as § 303B(k), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645; Pub. L. 104–106, title XLI, § 5607(c), Feb. 10, 1996, 110 Stat. 701, as amended Pub. L. 104–201, title X, § 1074(b)(7) (less effective date), Sept. 23, 1996, 110 Stat. 2660.
3708(b)
41:253b(l).
June 30, 1949, ch. 288, title III, § 303B(l), formerly § 303B(i), as added Pub. L. 103–355, title I, § 1066, Oct. 13, 1994, 108 Stat. 3269; redesignated as § 303B(l), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645.