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10 U.S.C. § 3721 (ARMED FORCES)
§ 3721. Evaluating the reasonableness of price: guidance and training
[Reserved].
(Added Pub. L. 116–283, div. A, title XVIII, § 1831(k), Jan. 1, 2021, 134 Stat. 4217.)
heading: Effective Date
text: Section effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3722 (ARMED FORCES)
§ 3722. Grants of exceptions to cost or pricing data certification requirements and waivers of cost accounting standards
[Reserved].
(Added Pub. L. 116–283, div. A, title XVIII, § 1831(k), Jan. 1, 2021, 134 Stat. 4217.)
heading: Effective Date
text: Section effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3723 (ARMED FORCES)
§ 3723. Streamlining awards for innovative technology projects: pilot program
[Reserved].
(Added Pub. L. 116–283, div. A, title XVIII, § 1831(k), Jan. 1, 2021, 134 Stat. 4217.)
heading: Effective Date
text: Section effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3724 (ARMED FORCES)
§ 3724. Risk-based contracting for smaller contract actions under truth in negotiations act: 1 pilot program
[Reserved].
(Added Pub. L. 116–283, div. A, title XVIII, § 1831(k), Jan. 1, 2021, 134 Stat. 4217.)
heading: Effective Date
text: Section effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (b)(1)–(3), Jan. 1, 2021, 134 Stat. 4218.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3742 (ARMED FORCES)
§ 3742. Adjustment of threshold amount of covered contract
Effective on October 1 of each year that is divisible by five, the amount set forth in section 3741(2) of this title shall be adjusted in accordance with section 1908 of title 41.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (b)(4), Jan. 1, 2021, 134 Stat. 4218, 4219.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (e), Jan. 1, 2021, 134 Stat. 4218, 4221.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3746 (ARMED FORCES)
§ 3746. Applicability of regulations to subcontractors
The regulations referred to in sections 3744 and 3745(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of such regulations to all subcontractors of the covered contract.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (e), Jan. 1, 2021, 134 Stat. 4218, 4221.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (f), Jan. 1, 2021, 134 Stat. 4218, 4221.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (g), Jan. 1, 2021, 134 Stat. 4218, 4222.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a), (h), Jan. 1, 2021, 134 Stat. 4218, 4222.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added Pub. L. 105–85, div. A, title VIII, § 804(a)(1), Nov. 18, 1997, 111 Stat. 1832, § 2325; amended Pub. L. 106–65, div. A, title X, § 1066(a)(19), Oct. 5, 1999, 113 Stat. 771; Pub. L. 108–375, div. A, title VIII, § 819, Oct. 28, 2004, 118 Stat. 2016; Pub. L. 112–239, div. A, title X, § 1076(g)(2), Jan. 2, 2013, 126 Stat. 1955; renumbered § 3761 and amended Pub. L. 116–283, div. A, title XVIII, § 1832(j)(2), (3), Jan. 1, 2021, 134 Stat. 4225.)
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
10 U.S.C. § 3773 (ARMED FORCES)
§ 3773. Domestic business concerns: programs for replenishment parts
The Secretary of Defense shall by regulation establish programs which provide domestic business concerns an opportunity to purchase or borrow replenishment parts from the United States for the purpose of design replication or modification, to be used by such concerns in the submission of subsequent offers to sell the same or like parts to the United States. Nothing in this section limits the authority of the head of an agency to impose restrictions on such a program related to national security considerations, inventory needs of the United States, the improbability of future purchases of the same or like parts, or any additional restriction otherwise required by law.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(a)(1), (d), Jan. 1, 2021, 134 Stat. 4226, 4229.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3774 (ARMED FORCES)
§ 3774. Major weapon systems and subsystems: long-term technical data needs
(a) Assessments and Acquisitions Strategies.—
(1) The Secretary of Defense shall require program managers for major weapon systems and subsystems of major weapon systems to—
(A) assess the long-term technical data needs of such systems and subsystems; and
(B) establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle.
(2) Such strategies may include—
(A) the development of maintenance capabilities within the Department of Defense; or
(B) competition for contracts for sustainment of such systems or subsystems.
(b) Requirements Relating to Assessments and Acquisition Strategies.—
Assessments and corresponding acquisition strategies developed under subsection (a) with respect to a weapon system or subsystem shall—
(1) be developed before issuance of a contract solicitation for the weapon system or subsystem;
(2) address the merits of including a priced contract option for the future delivery of technical data that were not acquired upon initial contract award;
(3) address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and
(4) apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapons systems and subsystems that are to be supported by other sustainment approaches.
(c) Preference for Specially Negotiated Licenses.—
(1) The Secretary of Defense shall, to the maximum extent practicable, negotiate and enter into a contract with a contractor for a specially negotiated license for technical data to support the product support strategy of a major weapon system or subsystem of a major weapon system.
(2) In performing the assessment and developing the corresponding strategy required under subsection (a) for such a system or subsystem, a program manager shall consider the use of specially negotiated licenses to acquire customized technical data appropriate for the particular elements of the product support strategy.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(a)(1), (e), Jan. 1, 2021, 134 Stat. 4226, 4229.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3775 (ARMED FORCES)
§ 3775. Definitions
(a) Covered Government Support Contractor Defined.—
In this subchapter, the term “covered Government support contractor” means a contractor under a contract the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), which contractor—
(1) is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and
(2) executes a contract with the Government agreeing to and acknowledging—
(A) that proprietary or nonpublic technical data furnished will be accessed and used only for the purposes stated in that contract;
(B) that the covered Government support contractor will enter into a non-disclosure agreement with the contractor to whom the rights to the technical data belong;
(C) that the covered Government support contractor will take all reasonable steps to protect the proprietary and nonpublic nature of the technical data furnished to the covered Government support contractor during the program or effort for the period of time in which the Government is restricted from disclosing the technical data outside of the Government;
(D) that a breach of that contract by the covered Government support contractor with regard to a third party’s ownership or rights in such technical data may subject the covered Government support contractor—
(i) to criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and
(ii) to civil actions for damages and other appropriate remedies by the contractor or subcontractor whose technical data is affected by the breach; and
(E) that such technical data provided to the covered Government support contractor under the authority of this section shall not be used by the covered Government support contractor to compete against the third party for Government or non-Government contracts.
(b) Additional Definitions.—
In this subchapter, the terms “major system component”, “modular system interface”, and “modular open system approach” have the meanings provided in section 4401 of this title.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(a)(1), (f), Jan. 1, 2021, 134 Stat. 4226, 4230.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3781 (ARMED FORCES)
§ 3781. Technical data: contractor justification for restrictions; review of restrictions
(a) Contracts Covered by Subchapter.—
This subchapter applies to any contract for supplies or services entered into by the Department of Defense that includes provisions for the delivery of technical data.
(b) Contractor Justification for Restrictions.—
A contract subject to this subchapter shall provide that a contractor under the contract and any subcontractor under the contract at any tier shall be prepared to furnish to the contracting officer a written justification for any use or release restriction (as defined in section 3786 of this title) asserted by the contractor or subcontractor.
(c) Review of Restrictions.—
(1) The Secretary of Defense shall ensure that there is a thorough review of the appropriateness of any use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter.
(2) The review of an asserted use or release restriction under paragraph (1) shall be conducted before the end of the three-year period beginning on the later of—
(A) the date on which final payment is made on the contract under which the technical data is required to be delivered; or
(B) the date on which the technical data is delivered under the contract.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(g), (h), Jan. 1, 2021, 134 Stat. 4231.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3782 (ARMED FORCES)
§ 3782. Technical data: challenges to contractor restrictions
(a) Challenges by Secretary of Defense.—
The Secretary of Defense may challenge a use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter if the Secretary finds that—
(1) reasonable grounds exist to question the current validity of the asserted restriction; and
(2) the continued adherence by the United States to the asserted restriction would make it impracticable to procure the item to which the technical data pertain competitively at a later time.
(b) Time Limit for Challenges; Exceptions.—
(1) A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under subsection (a) after the end of the six-year period described in paragraph (2) unless the technical data involved—
(A) are publicly available;
(B) have been furnished to the United States without restriction;
(C) have been otherwise made available without restriction; or
(D) are the subject of a fraudulently asserted use or release restriction.
(2) The six-year period referred to in paragraph (1) is the six-year period beginning on the later of—
(A) the date on which final payment is made on the contract under which the technical data are required to be delivered; or
(B) the date on which the technical data are delivered under the contract.
(c) Written Notice to Contractor or Subcontractor.—
If the Secretary challenges an asserted use or release restriction under subsection (a), the Secretary shall provide written notice of the challenge to the contractor or subcontractor asserting the restriction. Any such notice shall—
(1) state the specific grounds for challenging the asserted restriction;
(2) require a response within 60 days justifying the current validity of the asserted restriction; and
(3) state that evidence of a justification described in subsection (d) may be submitted.
(d) Justification.—
It is a justification of an asserted use or release restriction challenged under subsection (a) that, within the three-year period preceding the challenge to the restriction, the Department of Defense validated a restriction identical to the asserted restriction if—
(1) such validation occurred after a challenge to the validated restriction under this section; and
(2) the validated restriction was asserted by the same contractor or subcontractor (or a licensee of such contractor or subcontractor).
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(g), (i), Jan. 1, 2021, 134 Stat. 4231.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.