10 U.S.C. § 3702 (ARMED FORCES)
§ 3702. Required cost or pricing data and certification
(a) When Required.—
The head of an agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows:
(1) Offeror for prime contract.—
An offeror for a prime contract under a chapter 137 legacy provision to be entered into using procedures other than sealed-bid procedures that is only expected to receive one bid shall be required to submit cost or pricing data before the award of a contract if—
(A) in the case of a prime contract entered into after June 30, 2018, the price of the contract to the United States is expected to exceed $2,000,000; and
(B) in the case of a prime contract entered into on or before June 30, 2018, the price of the contract to the United States is expected to exceed $750,000.
(2) Contractor.—
The contractor for a prime contract under a chapter 137 legacy provision shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if the price adjustment is expected to exceed $2,000,000.
(3) Offeror for subcontract.—
An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this chapter and the price of the subcontract is expected to exceed $2,000,000.
(4) Subcontractor.—
The subcontractor for a subcontract covered by subparagraph (C) 1 shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if the price adjustment is expected to exceed $2,000,000.
(b) Certification.—
A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under subsection (a) (or required by the head of the agency concerned to submit such data under section 3704 of this title) shall be required to certify that, to the best of the person’s knowledge and belief, the cost or pricing data submitted are accurate, complete, and current.
(c) To Whom Submitted.—
Cost or pricing data required to be submitted under subsection (a) (or under section 3704 of this title), and a certification required to be submitted under subsection (b), shall be submitted—
(1) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or to a designated representative of the contracting officer); or
(2) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor.
(d) Applicability of Chapter.—
Except as provided under section 3703 of this title, this chapter applies to contracts entered into by the head of an agency on behalf of a foreign government.
(e) Subcontracts Not Affected by Waiver.—
A waiver of requirements for submission of certified cost or pricing data that is granted under section 3703(a)(3) of this title in the case of a contract or subcontract does not waive the requirement under subsection (a)(3) for submission of cost or pricing data in the case of subcontracts under that contract or subcontract unless the head of the procuring activity granting the waiver determines that the requirement under that subsection should be waived in the case of such subcontracts and justifies in writing the reasons for the determination.
(f) Modifications to Prior Contracts.—
Under subsection (a), in connection with a prime contract entered into on or before June 30, 2018, the head of the agency that entered into such contract shall modify the contract as soon as practicable to reflect subparagraphs (B) and (C) of such paragraph,2 without requiring consideration.
(g) Adjustment of Amounts.—
Effective on October 1 of each year that is divisible by 5, each amount set forth in subsection (a) shall be adjusted in accordance with section 1908 of title 41.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1831(a), (c), Jan. 1, 2021, 134 Stat. 4208, 4209; Pub. L. 117–81, div. A, title VIII, § 804(b), title XVII, § 1701(b)(10)(B)–(G), (c)(3), Dec. 27, 2021, 135 Stat. 1816, 2133, 2134, 2136.)
heading: Editorial Notes
heading: References in Text
text: Subparagraphs (B) and (C) of such paragraph, referred to in subsec. (f), probably mean pars. (2) and (3) of subsec. (a) of this section, which were transferred and redesignated from subpars. (B) and (C) of par. (1) of subsec. (a) of section 2306a of this title by Pub. L. 116–283. See 2021 Amendment notes below.
heading: Codification
text: The text of subsec. (a) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1831(c), was based on Pub. L. 99–500, § 101(c) [title X, § 952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–166, and Pub. L. 99–591, § 101(c) [title X, § 952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–166; Pub. L. 99–661, div. A, title IX, formerly title IV, § 952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title VIII, § 804(b)(1), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 101–510, div. A, title VIII, § 803(a)(1), Nov. 5, 1990, 104 Stat. 1589; Pub. L. 102–25, title VII, § 701(b), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102–190, div. A, title VIII, § 804(a)–(c)(1), Dec. 5, 1991, 105 Stat. 1415, 1416; Pub. L. 103–355, title I, §§ 1201, 1202(b), Oct. 13, 1994, 108 Stat. 3273, 3274; Pub. L. 105–85, div. A, title X, § 1073(a)(46), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 105–261, div. A, title VIII, § 805(a), Oct. 17, 1998, 112 Stat. 2083; Pub. L. 114–328, div. A, title VIII, § 822(1), Dec. 23, 2016, 130 Stat. 2276; Pub. L. 115–91, div. A, title VIII, § 811(a)(1), Dec. 12, 2017, 131 Stat. 1459; Pub. L. 116–283, div. A, § 814(a)(1), Jan. 1, 2021, 134 Stat. 3479; Pub. L. 117–81, div. A, title VIII, § 804(a), Dec. 27, 2021, 135 Stat. 1816. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
heading: Amendments
text: 2021—Pub. L. 116–283, § 1831(c)(1), (2)(A), transferred subsec. (a) of section 2306a of this title to this section and redesignated pars. (1) to (7) of such former subsec. (a) as subsecs. (a) to (g), respectively.
Subsec. (a). Pub. L. 116–283, § 1831(c)(2)(A), (B), (3), as amended by Pub. L. 117–81, § 1701(b)(10)(B), after redesignation of section 2306a(a)(1) of this title as subsec. (a) of this section, substituted “When Required” for “Required Cost or Pricing Data and Certification” in heading, redesignated subpars. (A) to (D) as pars. (1) to (4), respectively, and substituted “a prime contract under a chapter 137 legacy provision” for “a prime contract under this chapter” in introductory provisions of pars. (1) and (2).
Subsec. (a)(1). Pub. L. 116–283, § 1831(c)(2)(C), inserted heading and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.
Subsec. (a)(2). Pub. L. 116–283, § 1831(c)(2)(D)(ii)–(v), which directed amendment of par. (2) by redesignating cls. (i) to (iii) as subpars. (A) to (C), respectively, and making further substitutions in text and which could not be executed, was repealed by Pub. L. 117–81, § 1701(b)(10)(C)(i).
Pub. L. 116–283, § 1831(c)(2)(D), as amended by Pub. L. 117–81, § 1701(b)(10)(C)(ii), inserted heading.
Subsec. (a)(3). Pub. L. 117–81, § 1701(c)(3)(A), substituted “under this chapter” for “under this section”.
Pub. L. 116–283, § 1831(c)(2)(E)(ii)–(v), which directed amendment of par. (3) by redesignating cls. (i) to (iii) as subpars. (A) to (C), respectively, and making further substitutions in text and which could not be executed, was repealed by Pub. L. 117–81, § 1701(b)(10)(D)(i).
Pub. L. 116–283, § 1831(c)(2)(E), as amended by Pub. L. 117–81, § 1701(b)(10)(D)(ii), (iii), inserted heading.
Subsec. (a)(4). Pub. L. 116–283, § 1831(c)(2)(F)(ii), (iv), (v), which directed amendment of par. (4) by redesignating cls. (i) and (ii) as subpars. (A) and (B), respectively, and making further substitutions in text and which could not be executed, was repealed by Pub. L. 1701(b)(10)(E)(i).
Pub. L. 116–283, § 1831(c)(2)(F)(iii), which directed substitution of “paragraph (3)” for “subparagraph (C)” in introductory provisions of par. (4) and which could not be executed as directed but could be executed in text of par. (4), was repealed by Pub. L. 117–81, § 1701(b)(10)(E)(i).
Pub. L. 116–283, § 1831(c)(2)(F), as amended by Pub. L. 117–81, § 1701(b)(10)(E)(ii), (iii), inserted heading.
Subsec. (b). Pub. L. 116–283, § 1831(c)(4), after redesignation of section 2306a(a)(2) of this title as subsec. (b) of this section, inserted heading and substituted “subsection (a)” for “paragraph (1)” and “section 3704 of this title” for “subsection (c)”.
Subsec. (c). Pub. L. 116–283, § 1831(c)(5), as amended by Pub. L. 117–81, § 1701(b)(10)(F), after redesignation of section 2306a(a)(3) of this title as subsec. (c) of this section, inserted heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and, in introductory provisions, substituted “subsection (a) (or under section 3704 of this title)” for “paragraph (1) (or under subsection (c))” and “subsection (b)” for “paragraph (2)”.
Subsec. (d). Pub. L. 117–81, § 1701(c)(3)(B), substituted “this chapter” for “this section”.
Pub. L. 116–283, § 1831(c)(6), after redesignation of section 2306a(a)(4) of this title as subsec. (d) of this section, inserted heading and substituted “section 3703 of this title” for “subsection (b)”.
Subsec. (e). Pub. L. 116–283, § 1831(c)(7), after redesignation of section 2306a(a)(5) of this title as subsec. (e) of this section, inserted heading and substituted “section 3703(a)(3) of this title” for “subsection (b)(1)(C)”, “subsection (a)(3)” for “paragraph (1)(C)”, and “that subsection” for “that paragraph”.
Subsec. (f). Pub. L. 116–283, § 1831(c)(8)(D), which directed substitution of “paragraphs (2)(B) and (3)(B) of subsection (a)” for “subparagraphs (B)(ii) and (C)(ii) of paragraph (1)”, could not be executed because the phrase “subparagraphs (B)(ii) and (C)(ii) of paragraph (1)” did not appear after the intervening amendment made by Pub. L. 117–81, § 804(a), to subsec. (a)(6) of section 2306a of this title prior to its transfer to subsec. (f) of this section.
Pub. L. 116–283, § 1831(c)(8)(C), which directed substitution of “that subsection” for “that paragraph” and could not be executed, was repealed by Pub. L. 117–81, § 1701(b)(10)(G).
Pub. L. 116–283, § 1831(c)(8)(B), substituted “subsection (a)” for “paragraph (1)”.
Pub. L. 116–283, § 1831(c)(8)(A), as amended by Pub. L. 117–81, § 804(b), inserted heading.
Subsec. (g). Pub. L. 116–283, § 1831(c)(9), after redesignation of section 2306a(a)(7) of this title as subsec. (g) of this section, inserted heading and substituted “subsection (a)” for “paragraph (1)”.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2021 Amendment
text: Amendment by section 1701(b)(10)(B)–(G) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a Technical, Conforming, and Clerical Amendments Related to Title XVIII of the Fiscal Year 2021 NDAA note preceding section 3001 of this title and Effective Date note below.
Amendment by section 1701(c)(3) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a Technical, Conforming, and Clerical Amendments Related to Title XVIII of the Fiscal Year 2021 NDAA note preceding section 3001 of this title and Effective Date note below.
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.
heading: Data Collection
text: Pub. L. 117–81, div. A, title VIII, § 862(b), Dec. 27, 2021, 135 Stat. 1852, provided that:
“The Secretary of Defense shall develop and implement a plan to collect and analyze data on the use of authority under such section 873 [of Pub. L. 114–92, set out below] for the purposes of—
“(1) developing and sharing best practices; and
“(2) providing information to the Secretary of Defense and Congress on the use of authority under such section 873 and related policy issues.”
heading: Pilot Program for Streamlining Awards for Innovative Technology Projects
text: Pub. L. 114–92, div. A, title VIII, § 873(a)–(g), Nov. 25, 2015, 129 Stat. 939, 940, as amended by Pub. L. 114–328, div. A, title VIII, § 896, Dec. 23, 2016, 130 Stat. 2326; Pub. L. 116–283, div. A, title VIII, § 832, Jan. 1, 2021, 134 Stat. 3753; Pub. L. 117–81, div. A, title VIII, § 862(a), Dec. 27, 2021, 135 Stat. 1852, provided that:
“(a) Exception From Certified Cost and Pricing Data Requirements.—
The requirements under section 2306a(a) of title 10, United States Code, shall not apply to a contract, subcontract, or modification of a contract or subcontract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—
“(1) a technical, merit-based selection procedure, such as a broad agency announcement, or
“(2) the Small Business Innovation Research Program or Small Business Technology Transfer Program,
unless the head of the agency determines that submission of cost and pricing data should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.
“(b) Exception From Records Examination Requirement.—
The requirements under subparagraphs (A), (B), and (C) of section 2313(a)(2) of title 10, United States Code, and subsection (b) of section 2313 of title 10, United States Code, shall not apply to a contract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—
“(1) a technical, merit-based selection procedure, such as a broad agency announcement, or
“(2) the Small Business Innovation Research Program,
unless the head of the agency determines that auditing of records should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award, and if such performance audit is initiated within 18 months of the contract completion.
“(c) Treatment as Competitive Procedures.—
Use of a technical, merit-based selection procedure or the Small Business Innovation Research Program or Small Business Technology Transfer Program for the pilot program under this section shall be considered to be use of competitive procedures for purposes of chapter 137 of title 10, United States Code.
“(d) Discretion To Use Non-certified Accounting Systems.—
In executing programs under this pilot program, the Secretary of Defense shall establish procedures under which a small business or nontraditional contractor may engage an independent certified public accountant for the review and certification of its accounting system for the purposes of any audits required by regulation, unless the head of the agency determines that this is not appropriate based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.
“(e) Guidance and Training.—
The Secretary of Defense shall ensure that acquisition and auditing officials are provided guidance and training on the flexible use and tailoring of authorities under the pilot program to maximize efficiency and effectiveness.
“(f) Sunset.—
The exceptions under subsections (a) and (b) shall terminate on October 1, 2024.
“(g) Definitions.—
In this section [enacting this note and amending section 638 of Title 15, Commerce and Trade]:
“(1) Small business.—
The term ‘small business’ has the meaning given the term ‘small business concern’ under section 3 of the Small Business Act (15 U.S.C. 632).
“(2) Nontraditional defense contractor.—
The term ‘nontraditional defense contractor’ has the meaning given that term in section 2302(9) of title 10, United States Code [now 10 U.S.C. 3014].”
[Section 896(2)(B) of Pub. L. 114–328, which directed amendment of par. (2) of subsec. (b) of section 873 of Pub. L. 114–92, set out above, by inserting “, and if such performance audit is initiated within 18 months of the contract completion” before the period at the end, was executed by making the insertion before the period at the end of the concluding provisions of subsec. (b), to reflect the probable intent of Congress.]