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10 U.S.C. § 3533 (ARMED FORCES)
§ 3533. Multiyear contracts for acquisition of services: contract cancellation or termination
(a) Cancellation or Termination for Insufficient Funding After First Year.—
In the event that funds are not made available for the continuation of a multiyear contract for services into a subsequent fiscal year, the contract shall be canceled or terminated, and the costs of cancellation or termination may be paid from—
(1) appropriations originally available for the performance of the contract concerned;
(2) appropriations currently available for procurement of the type of services concerned, and not otherwise obligated; or
(3) funds appropriated for those payments.
(b) Contract Cancellation Ceilings Exceeding $100,000,000.—
(1) Before any contract described in sections 1 3531(a) of this title that contains a clause setting forth a cancellation ceiling in excess of $100,000,000 may be awarded, the head of the agency concerned shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to the congressional defense committees, and such contract may not then be awarded until the end of a period of 30 days beginning on the date of such notification.
(2) In the case of a contract described in sections 1 3531(a) of this title with a cancellation ceiling described in paragraph (1), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall give written notification to the congressional defense committees of—
(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;
(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and
(C) a financial risk assessment of not including budgeting for costs of contract cancellation.
10 U.S.C. § 3534 (ARMED FORCES)
§ 3534. Multiyear contracts for acquisition of services: contracts with value above $500,000,000 to be specifically authorized by law
The head of an agency may not initiate a multiyear contract for services under this subchapter if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided by law.
10 U.S.C. § 3535 (ARMED FORCES)
§ 3535. Multiyear contracts for acquisition of services: notice to congressional committees before taking certain actions
(a) Notice Before Award of Certain Contracts.—
The head of an agency may not initiate under this subchapter a contract for services that includes an unfunded contingent liability in excess of $20,000,000 unless the congressional defense committees are notified of the proposed contract at least 30 days in advance of the award of the proposed contract.
(b) Notice Before Terminating Multiyear Procurement Contract for Services.—
The head of an agency may not terminate a multiyear procurement contract for services until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.
10 U.S.C. § 3551 (ARMED FORCES)
§ 3551. Multiyear procurement authority: purchase of dinitrogen tetroxide, hydrazine, and hydrazine-related products
(a) Ten-Year Contract Period.—
The Secretary of Defense may enter into a contract for a period of up to 10 years for the purchase of dinitrogen tetroxide, hydrazine, and hydrazine-related products for the support of a United States national security program or a United States space program.
(b) Extensions.—
A contract entered into for more than one year under the authority of subsection (a) may be extended for a total of not more than 10 years pursuant to any option or options set forth in the contract.
10 U.S.C. § 3571 (ARMED FORCES)
§ 3571. Simplified acquisition threshold
(a) Simplified Acquisition Threshold.—
For purposes of acquisitions by agencies named in section 3063 of this title, the simplified acquisition threshold is as specified in section 134 of title 41.
(b) Inapplicable Laws.—
No law properly listed in the Federal Acquisition Regulation pursuant to section 1905 of title 41 shall apply to or with respect to a contract or subcontract that is not greater than the simplified acquisition threshold.
10 U.S.C. § 3672 (ARMED FORCES)
§ 3672. Requirement of specific authorization by law for appropriation, and for obligation and expenditure, of funds for certain contracts relating to aircraft, naval vessels, and combat vehicles
(a) Limitation.—
Funds may not be appropriated for any fiscal year to or for any armed force or obligated or expended for—
(1) the long-term lease or charter of any aircraft, naval vessel, or combat vehicle; or
(2) for the lease or charter of any aircraft, naval vessel, or combat vehicle the terms of which provide for a substantial termination liability on the part of the United States,
unless funds for that purpose have been specifically authorized by law.
(b) Matter to Be Submitted to Congress.—
(1) Whenever a request is submitted to Congress for the authorization of the long-term lease or charter of aircraft, naval vessels, or combat vehicles or for the authorization of a lease or charter of aircraft, naval vessels, or combat vehicles which provides for a substantial termination liability on the part of the United States, the Secretary of Defense shall submit with that request an analysis of the cost to the United States (including lost tax revenues) of any such lease or charter arrangement compared with the cost to the United States of direct procurement of the aircraft, naval vessels, or combat vehicles by the United States.
(2) Any such analysis shall be reviewed and evaluated by the Director of the Office of Management and Budget and the Secretary of the Treasury within 30 days after the date on which the request and analysis are submitted to Congress. The Director and Secretary shall conduct such review and evaluation on the basis of the guidelines issued pursuant to section 3676 of this title and shall report to Congress in writing on the results of their review and evaluation at the earliest practicable date, but in no event more than 45 days after the date on which the request and analysis are submitted to the Congress.
(3) Whenever a request is submitted to Congress for the authorization of funds for the Department of Defense for the long-term lease or charter of aircraft, naval vessels, or combat vehicles authorized under this chapter, the Secretary of Defense—
(A) shall indicate in the request what portion of the requested funds is attributable to capital-hire; and
(B) shall reflect such portion in the appropriate procurement account in the request.
10 U.S.C. § 3673 (ARMED FORCES)
§ 3673. Limitation on indemnification
Funds appropriated to the Department of Defense may not be used to indemnify any person under the terms of a contract entered into under this chapter—
(1) for any amount paid or due by any person to the United States for any liability arising under the Internal Revenue Code of 1986; or
(2) to pay any attorneys’ fees in connection with such contract.
10 U.S.C. § 3675 (ARMED FORCES)
§ 3675. Capital lease or lease-purchase treated as an acquisition
(a) In General.—
If a lease or charter covered by this chapter is a capital lease or a lease-purchase—
(1) the lease or charter shall be treated as an acquisition and shall be subject to all applicable statutory and regulatory requirements for the acquisition of aircraft, naval vessels, or combat vehicles; and
(2) funds appropriated to the Department of Defense for operation and maintenance may not be obligated or expended for the lease or charter.
(b) Definitions.—
In this section, the terms “capital lease” and “lease-purchase” have the meanings given those terms in Appendix B to Office of Management and Budget Circular A–11, as in effect on January 6, 2006.
10 U.S.C. § 3677 (ARMED FORCES)
§ 3677. Contracts for lease or use of vessels for a term of greater than two years but less than five years: prior notice to congressional committees
The Secretary of a military department may make a contract for the lease of a vessel or for the provision of a service through use by a contractor of a vessel, the term of which is for a period of greater than two years, but less than five years, only if—
(1) the Secretary has notified the congressional defense committees of the proposed contract and included in such notification—
(A) a detailed description of the terms of the proposed contract and a justification for entering into the proposed contract rather than obtaining the capability provided for by the lease, charter, or services involved through purchase of the vessel;
(B) a determination that entering into the proposed contract as a means of obtaining the vessel is the most cost-effective means of obtaining such vessel; and
(C) a plan for meeting the requirement provided by the proposed contract upon completion of the term of the lease contract; and
(2) a period of 60 days has expired following the date on which notice was received by such committees.
10 U.S.C. § 3678 (ARMED FORCES)
§ 3678. Contracts with terms of 18 months or more: limitation
The Secretary of Defense or the Secretary of a military department may not enter into any contract with a term of 18 months or more, or extend or renew any contract for a term of 18 months or more, for any vessel, aircraft, or vehicle, through a lease, charter, or similar agreement, unless the Secretary has considered all costs of such contract (including estimated termination liability) and has determined in writing that the contract is in the best interest of the Government.
10 U.S.C. § 3701 (ARMED FORCES)
§ 3701. Definitions
(a) 1 Definitions.—
In this chapter:
(1) 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 3706(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. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived.
(2) Subcontract.—
The term “subcontract” includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or a subcontractor.
10 U.S.C. § 3704 (ARMED FORCES)
§ 3704. 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 3702 of this title for a contract, subcontract, or modification of a contract or subcontract, such 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 such 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 such data to be submitted under this section, the head of the procuring activity shall justify in writing the reason for such requirement.
(b) Exception.—
The head of the procuring activity may not require certified cost or pricing data to be submitted under this subsection for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in paragraph (1) or (2) of section 3703(a) of this title.
(c) Delegation of authority prohibited.—
The head of a procuring activity may not delegate functions under this subsection.
10 U.S.C. § 3707 (ARMED FORCES)
§ 3707. Interest and penalties for certain overpayments
(a) In General.—
If the United States makes an overpayment to a contractor under a contract 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 United States—
(1) for interest on the amount of such 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 such overpayment to the United States; and
(B) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986; and
(2) if the submission of such 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 3702(b) of this title with respect to the cost or pricing data shall not be affected by the refusal to submit such certification.
10 U.S.C. § 3741 (ARMED FORCES)
§ 3741. Definitions
In this subchapter:
(1) Compensation.—
The term “compensation”, for a year, means the total amount of wages, salary, bonuses and deferred compensation for the year, whether paid, earned, or otherwise accruing, as recorded in an employer’s cost accounting records for the year.
(2) Covered contract.—
The term “covered contract” means a contract for an amount in excess of $500,000 that is entered into by the head of an agency, except that such term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial products or commercial services.
(3) Fiscal year.—
The term “fiscal year” means a fiscal year established by a contractor for accounting purposes.
(4) Head of the agency.—
The term “head of the agency” or “agency head” does not include the Secretary of a military department.
(5) Agency.—
The term “agency” means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.
10 U.S.C. § 3743 (ARMED FORCES)
§ 3743. Effect of submission of unallowable costs
(a) Indirect Cost That Violates a FAR Cost Principle.—
The head of an agency shall require that a covered contract provide that if the contractor submits to the agency a proposal for settlement of indirect costs incurred by the contractor for any period after such costs have been accrued and if that proposal includes the submission of a cost which is unallowable because the cost violates a cost principle in the Federal Acquisition Regulation or applicable agency supplement to the Federal Acquisition Regulation, the cost shall be disallowed.
(b) Penalty for Violation of Cost Principle.—
(1) If the head of the agency determines that a cost submitted by a contractor in its proposal for settlement is expressly unallowable under a cost principle referred to in subsection (a) that defines the allowability of specific selected costs, the head of the agency shall assess a penalty against the contractor in an amount equal to—
(A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus
(B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the United States for the use of any funds which a contractor has been paid in excess of the amount to which the contractor was entitled.
(2) Cost determined to be unallowable before proposal submitted.—
If the head of the agency determines that a proposal for settlement of indirect costs submitted by a contractor includes a cost determined to be unallowable in the case of such contractor before the submission of such proposal, the head of the agency shall assess a penalty against the contractor in an amount equal to two times the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted.
(c) Waiver of Penalty.—
The Federal Acquisition Regulation shall provide for a penalty under subsection (b) to be waived in the case of a contractor’s proposal for settlement of indirect costs when—
(1) the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;
(2) the amount of unallowable costs subject to the penalty is insignificant; or
(3) the contractor demonstrates, to the contracting officer’s satisfaction, that—
(A) it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor’s proposal for settlement of indirect costs; and
(B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.
(d) Applicability of Contract Disputes Procedure to Disallowance of Cost and Assessment of Penalty.—
An action of the head of an agency under subsection (a) or (b)—
(1) shall be considered a final decision for the purposes of section 7103 of title 41; and
(2) is appealable in the manner provided in section 7104(a) of title 41.
10 U.S.C. § 3745 (ARMED FORCES)
§ 3745. Required regulations
(a) In General.—
The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Such provisions shall define in detail and in specific terms those costs which 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 he has obtained—
(A) adequate documentation with respect to such costs; and
(B) the opinion of the contract auditor on the allowability of such costs.
(2) Presence of contract auditor.—
The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, the 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 the contract auditor as questioned with respect to a proposal for settlement be resolved in such a manner that the amount of the individual questioned costs that are paid will be reflected in the settlement.
10 U.S.C. § 3747 (ARMED FORCES)
§ 3747. 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. Any such certification shall be in a form prescribed in the Federal Acquisition Regulation.
(b) Waiver.—
The head of the agency or the Secretary of the military department concerned may, in an exceptional case, waive the requirement for certification under subsection (a) in the case of any contract if the head of the agency or the Secretary—
(1) determines in such case that it would be in the interest of the United States to waive such certification; and
(2) states in writing the reasons for that determination and makes such determination available to the public.
10 U.S.C. § 3748 (ARMED FORCES)
§ 3748. Penalties for submission of cost known as not allowable
The submission to an agency of a proposal for settlement of costs for any period after such costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that such cost is unallowable, shall be subject to the provisions of section 287 of title 18 and section 3729 of title 31.
10 U.S.C. § 3749 (ARMED FORCES)
§ 3749. Burden of proof on contractor
In a proceeding before the Armed Services 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 Department of Defense is in issue, the burden of proof shall be upon the contractor to establish that those costs are reasonable.
10 U.S.C. § 3761 (ARMED FORCES)
§ 3761. Restructuring costs
(a) Limitation on Payment of Restructuring Costs.—
The Secretary of Defense may not pay, under subchapter I, a defense contractor for restructuring costs associated with a business combination of the contractor that occurs after November 18, 1997, unless the Secretary determines in writing either—
(1) that the amount of projected savings for the Department of Defense associated with the restructuring will be at least twice the amount of the costs allowed; or
(2) that the amount of projected savings for the Department of Defense associated with the restructuring will exceed the amount of the costs allowed and that the business combination will result in the preservation of a critical capability that otherwise might be lost to the Department.
(b) Limitation on Delegation.—
The Secretary may not delegate the authority to make a determination under subsection (a), with respect to a business combination, to an official of the Department of Defense—
(1) below the level of an Assistant Secretary of Defense for cases in which the amount of restructuring costs is expected to exceed $25,000,000 over a 5-year period; or
(2) below the level of the Director of the Defense Contract Management Agency for all other cases.
(c) Definition.—
In this section, the term “business combination” includes a merger or acquisition.