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US (United States) Code. Title 41. Chapter 4: Procurement procedures

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-CITE-

41 USC CHAPTER 4 - PROCUREMENT PROCEDURES 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

-HEAD-

CHAPTER 4 - PROCUREMENT PROCEDURES

-MISC1-

SUBCHAPTER I - GENERAL PROVISIONS

Sec.

201 to 205. Transferred.

SUBCHAPTER II - GENERAL SERVICES ADMINISTRATION

211 to 219. Transferred.

SUBCHAPTER III - PROPERTY MANAGEMENT

231 to 240. Transferred.

SUBCHAPTER IV - PROCUREMENT PROVISIONS

251. Declaration of purpose of this subchapter.

252. Purchases and contracts for property.

(a) Applicability of subchapter; delegation of

authority.

(b) Small business concerns; share of business.

furnishing of public buildings or

improvements; contracts for construction or

repair of buildings, roads, sidewalks, sewers,

mains, etc.; Federal Highway Lands Program.

252a. Simplified acquisition threshold.

(a) Simplified acquisition threshold.

(b) Inapplicable laws.

252b. Implementation of simplified acquisition procedures.

252c. Implementation of electronic commerce capability.

(a) Implementation of electronic commerce

capability.

(b) Designation of agency official.

253. Competition requirements.

(a) Procurement through full and open competition;

competitive procedures.

(b) Exclusion of particular source; restriction of

solicitation to small business concerns.

(d) Property or services deemed available from only

one source; nondelegable authority.

(e) Offer requests to potential sources.

(f) Justification for use of noncompetitive

procedures.

(g) Simplified procedures for small purchases.

(h) Efficient implementation of requirement.

(i) Merit-based award of contracts.

253a. Planning and solicitation requirements.

(a) Preparation; planning; specifications in

solicitation.

(b) Contents of solicitation.

(d) Additional information in solicitation.

(e) Evaluation of purchase options.

253b. Evaluation and award.

(a) Basis.

(b) Rejection of bids or proposals.

notice.

(d) Discussions with offerors; written

notification.

(e) Post-award debriefings.

(f) Preaward debriefings.

(g) Summary of debriefing.

(h) Alternative dispute resolution.

(i) Antitrust violations.

(j) Planning for future competition.

(k) Protest file.

(l) Agency actions on protests.

(m) Prohibition on release of contractor proposals.

253c. Encouragement of new competition.

(a) "Qualification requirement" defined.

(b) Agency head; functions; prior to enforcement of

qualification requirement.

offers.

(d) Number; qualified sources or products; fewer

than two actual manufacturers; functions of

agency head.

(e) Examination; need for qualification

requirement.

(f) Enforcement determination by agency head.

253d. Validation of proprietary data restrictions.

(a) Contracts; delivery of technical services;

contents.

(b) Review; challenge; notice.

responses.

(d) Decision; validity of asserted restriction;

failure to submit response.

(e) Claim; considered claim within Contract

Disputes Act of 1978.

(f) Challenge; use of technical data; sustained;

liability of United States for costs and fees.

253e. Repealed.

253f. Economic order quantities.

(a) Procurement of supplies; costs advantageous to

United States.

(b) Opinions; economic advantage to United States.

253g. Prohibition of contractors limiting subcontractor

sales directly to United States.

(a) Contract restrictions.

(b) Rights under law.

(d) Inapplicability when Government treated

similarly to other purchasers.

253h. Task and delivery order contracts: general authority.

(a) Authority to award.

(b) Solicitation.

noncompetitive procedures.

(d) Single and multiple contract awards.

(e) Contract modifications.

(f) Inapplicability to contracts for advisory and

assistance services.

(g) Relationship to other contracting authority.

253i. Task order contracts: advisory and assistance

services.

(a) Authority to award.

(b) Limitation on contract period.

(d) Required content of solicitation and contract.

(e) Multiple awards.

(f) Contract modifications.

(g) Contract extensions.

(h) Inapplicability to certain contracts.

(i) "Advisory and assistance services" defined.

253j. Task and delivery order contracts: orders.

(a) Issuance of orders.

(b) Multiple award contracts.

(d) Protests.

(e) Task and delivery order ombudsman.

(f) Applicability.

253k. Task and delivery order contracts: definitions.

253l. Severable services contracts for periods crossing

fiscal years.

(a) Authority.

(b) Obligation of funds.

253l-1. Contract authority of Comptroller General.

253l-2. Contract authority of Library of Congress.

253l-3. Contract authority of Chief Administrative Officer of

the House of Representatives.

253l-4. Contract authority of Congressional Budget Office.

253m. Design-build selection procedures.

(a) Authorization.

(b) Criteria for use.

(d) Solicitation to state number of offerors to be

selected for phase-two requests for

competitive proposals.

(e) Requirement for guidance and regulations.

254. Contract requirements.

(a) Contracts awarded using procedures other than

sealed-bid procedures.

(b) Barred contracts; fee limitation; determination

of use; advance notification.

254a. Cost-type research and development contracts with

educational institutions.

254b. Cost or pricing data: truth in negotiations.

(a) Required cost or pricing data and

certification.

(b) Exceptions.

contracts.

(d) Submission of other information.

(e) Price reductions for defective cost or pricing

data.

(f) Interest and penalties for certain

overpayments.

(g) Right of United States to examine contractor

records.

(h) Definitions.

254c. Multiyear contracts.

(a) Authority.

(b) Termination clause.

(d) Multiyear contract defined.

(e) Rule of construction.

254d. Examination of records of contractor.

(a) Agency authority.

(b) Subpoena power.

(d) Limitation on audits relating to indirect

costs.

(e) Limitation.

(f) Inapplicability to certain contracts.

(g) Form of original record storage.

(h) Use of images of original records.

(i) "Records" defined.

255. Contract financing.

(a) Payment authority.

(b) Performance-based payments.

(d) Security for advance payments.

(e) Conditions for progress payments.

(f) Conditions for payments for commercial items.

(g) Action in case of fraud.

256. Allowable costs.

(a) Indirect cost that violates FAR cost principle.

(b) Penalty for violation of cost principle.

(d) Applicability of contract disputes procedure to

disallowance of cost and assessment of

penalty.

(e) Specific costs not allowable.

(f) Required regulations.

(g) Applicability of regulations to subcontractors.

(h) Contractor certification required.

(i) Penalties for submission of cost known as not

allowable.

(j) Contractor to have burden of proof.

(k) Proceeding costs not allowable.

(l) "Covered contract" defined.

(m) Other definitions.

256a. Waiver of liquidated damages.

257. Administrative determinations.

(a) Conclusiveness; delegation of powers.

(b) Basis of determinations; finding conclusive;

preservation of findings; copy.

258. Repealed.

259. Definitions.

260. Laws not applicable to contracts.

261. Assignment and delegation of procurement functions and

responsibilities.

(a) In general.

(b) Procurements for or with other agencies.

262. Determinations and decisions.

(a) Individual or class determinations and

decisions authorized.

(b) Written findings required.

263. Performance based management: acquisition programs.

(a) Congressional policy.

(b) Establishment of goals.

264. Relationship of commercial item provisions to other

provisions of law.

(a) Applicability of subchapter.

(b) List of laws inapplicable to contracts for

acquisition of commercial items.

264a. Definitions relating to procurement of commercial

items.

264b. Preference for acquisition of commercial items.

(a) Preference.

(b) Implementation.

265. Contractor employees: protection from reprisal for

disclosure of certain information.

(a) Prohibition of reprisals.

(b) Investigation of complaints.

(d) Construction.

(e) Definitions.

266. Merit-based award of grants for research and

development.

(a) Policy.

(b) Rule of construction.

(d) Inapplicability to certain grants.

266a. Share-in-savings contracts.

(a) Authority to enter into share-in-savings

contracts.

(b) Cancellation and termination.

(d) Termination.

SUBCHAPTER V - FOREIGN EXCESS PROPERTY

271 to 274. Transferred.

SUBCHAPTER VI - FEDERAL RECORD MANAGEMENT

281 to 291. Transferred.

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41 USC SUBCHAPTER I - GENERAL PROVISIONS 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER I - GENERAL PROVISIONS

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SUBCHAPTER I - GENERAL PROVISIONS

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41 USC Secs. 201 to 205 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER I - GENERAL PROVISIONS

-HEAD-

Secs. 201 to 205. Transferred

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CODIFICATION

Section 201, act June 30, 1949, ch. 288, Sec. 2, 63 Stat. 378,

which related to Congressional declaration of policy, was

transferred to section 471 of former Title 40, Public Buildings,

Property, and Works, and was repealed and reenacted as section 101

of Title 40, Public Buildings, Property, and Works, by Pub. L.

107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 202, acts June 30, 1949, ch. 288, Sec. 3, 63 Stat. 378;

Sept. 5, 1950, ch. 849, Secs. 7(a), 8(a), 64 Stat. 590, 591, which

related to definitions, was transferred to section 472 of former

Title 40, and was repealed and reenacted as section 102 of Title

40, Public Buildings, Property, and Works, by Pub. L. 107-217,

Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 203, act June 30, 1949, ch. 288, title VI, Sec. 601,

formerly title V, Sec. 501, 63 Stat. 399; renumbered Sept. 5, 1950,

ch. 849, Sec. 6(a), (b), 64 Stat. 583, which related to

applicability of existing provisions, was transferred to section

473 of former Title 40, and was repealed and reenacted as section

112 of Title 40, Public Buildings, Property, and Works, by Pub. L.

107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 204, act June 30, 1949, ch. 288, title VI, Sec.

602(c)-(e), formerly title V, Sec. 502(c), (d), 63 Stat. 401;

renumbered and amended (including amendment to add subsec. (e)),

Sept. 5, 1950, ch. 849, Secs. 6(a), (b), 7(e), (f), 8(c), 64 Stat.

583, 590, which related to exemptions for Congress, departments,

agencies, corporations, and persons, was transferred to section 474

of former Title 40, and was repealed and reenacted as section 113

of Title 40, Public Buildings, Property, and Works, by Pub. L.

107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 205, act June 30, 1949, ch. 288, title VI, Sec. 603,

formerly title V, Sec. 503, 63 Stat. 403; renumbered and amended

Sept. 5, 1950, ch. 849, Secs. 6(a), (b), 7(g), 64 Stat. 583, 590,

which related to authorization of appropriations and fund transfer

authority, was transferred to section 475 of former Title 40, and

was repealed and reenacted as sections 124 and 125 of Title 40,

Public Buildings, Property, and Works, by Pub. L. 107-217, Secs. 1,

6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

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41 USC SUBCHAPTER II - GENERAL SERVICES ADMINISTRATION 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER II - GENERAL SERVICES ADMINISTRATION

-HEAD-

SUBCHAPTER II - GENERAL SERVICES ADMINISTRATION

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41 USC Secs. 211 to 219 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER II - GENERAL SERVICES ADMINISTRATION

-HEAD-

Secs. 211 to 219. Transferred

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CODIFICATION

Section 211, act June 30, 1949, ch. 288, title I, Sec. 101, 63

Stat. 379, which related to General Services Administration, was

transferred to section 630 of former Title 5, Executive Departments

and Government Officers and Employees, subsequently transferred to

section 751 of former Title 40, Public Buildings, Property, and

Works, and repealed and reenacted as sections 121(c)(1), 301, and

302 of Title 40, Public Buildings, Property, and Works, by Pub. L.

107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 212, act June 30, 1949, ch. 288, title I, Sec. 102, 63

Stat. 380, which related to transfer of functions, was transferred

to section 630a of former Title 5, Executive Departments and

Government Officers and Employees, subsequently transferred to

section 752 of former Title 40, and repealed and reenacted as

section 303(a) of Title 40, Public Buildings, Property, and Works,

by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,

1304.

Section 213, act June 30, 1949, ch. 288, title I, Sec. 103, 63

Stat. 380, which related to transfer of affairs of Federal Works

Agency, was transferred to section 630b of former Title 5,

Executive Departments and Government Officers and Employees,

subsequently transferred to section 753 of former Title 40, and

repealed and reenacted as section 303(b) of Title 40, Public

Buildings, Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b),

Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 214, act June 30, 1949, ch. 288, title I, Sec. 104, 63

Stat. 381, which related to records management, was transferred to

section 391 of former Title 44, Public Printing and Documents. See

sections 1506, 2102, 2301, 2501, and 2902 of Title 44, Public

Printing and Documents.

Section 215, act June 30, 1949, ch. 288, title I, Sec. 105, 63

Stat. 381, which related to transfer and liquidation of War Assets

Administration, was transferred to section 630c of former Title 5,

Executive Departments and Government Officers and Employees, and

was subsequently repealed by section 8(a) of Pub. L. 89-554, Sept.

6, 1966, 80 Stat. 632.

Section 216, act June 30, 1949, ch. 288, title I, Sec. 106, 63

Stat. 381, which related to redistribution of Administrator's

functions, was transferred to section 630d of former Title 5,

Executive Departments and Government Officers and Employees,

subsequently transferred to section 754 of former Title 40, Public

Buildings, Property, and Works, and repealed and reenacted as

section 121(e)(1)(C), (2)(A) of Title 40, Public Buildings,

Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304.

Section 217, act June 30, 1949, ch. 288, title I, Sec. 107, 63

Stat. 382, which related to transfer of funds, was transferred to

section 630e of former Title 5, Executive Departments and

Government Officers and Employees, subsequently transferred to

section 755 of former Title 40, and repealed by Pub. L. 107-217,

Sec. 6(b), Aug. 21, 2002, 116 Stat. 1304.

Section 218, act June 30, 1949, ch. 288, title I, Sec. 108, 63

Stat. 382, which related to status of transferred employees, was

transferred to section 630f of former Title 5, Executive

Departments and Government Officers and Employees, and was

subsequently repealed by section 8(a) of Pub. L. 89-554, Sept. 6,

1966, 80 Stat. 632.

Section 219, acts June 30, 1949, ch. 288, title I, Sec. 109, 63

Stat 382; Sept. 5, 1950, ch. 849, Secs. 1, 2(a), (b), 3, 64 Stat.

578, which related to the General Supply Fund, was transferred to

section 630g of former Title 5, Executive Departments and

Government Officers and Employees, subsequently transferred to

section 756 of former Title 40, Public Buildings, Property, and

Works, and repealed and reenacted as sections 313 and 321(a)-(d),

(f)(1), (g) of Title 40, Public Buildings, Property, and Works, by

Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,

1304.

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41 USC SUBCHAPTER III - PROPERTY MANAGEMENT 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER III - PROPERTY MANAGEMENT

-HEAD-

SUBCHAPTER III - PROPERTY MANAGEMENT

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41 USC Secs. 231 to 240 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER III - PROPERTY MANAGEMENT

-HEAD-

Secs. 231 to 240. Transferred

-COD-

CODIFICATION

Section 231, acts June 30, 1949, ch. 288, title II, Sec. 201, 63

Stat. 383; Aug. 10, 1949, ch. 412, Sec. 12(a), 63 Stat. 591; Sept.

5, 1950, ch. 849, Sec. 8(b), 64 Stat. 591, which related to

procurement, warehousing, and related activities, was transferred

to section 481 of former Title 40, Public Building, Property, and

Works, and was repealed and reenacted as sections 501 to 505 of

Title 40, Public Buildings, Property, and Works, by Pub. L.

107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 231a, act Oct. 26, 1949, ch. 737, 63 Stat. 920, which

related to clarification of status of Architect of the Capitol

under this chapter, was transferred to section 482 of former Title

40, and was repealed by Pub. L. 107-217, Sec. 6(b), Aug. 21, 2002,

116 Stat. 1304.

Section 232, acts June 30, 1949, ch. 288, title II, Sec. 202, 63

Stat. 384; Aug. 10, 1949, ch. 412, Sec. 12(a), 63 Stat. 591, which

related to property utilization, was transferred to section 483 of

former Title 40, and was repealed and reenacted as sections 521 to

527 and 529 of Title 40, Public Buildings, Property, and Works, by

Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,

1304.

Section 233, acts June 30, 1949, ch. 288, title II, Sec. 203, 63

Stat. 385; Aug. 10, 1949, ch. 412, Sec. 12(a), 63 Stat. 591; Sept.

5, 1950, ch. 849, Sec. 4, 64 Stat. 579, which related to disposal

or surplus property, was transferred to section 484 of former Title

40, and was repealed and reenacted as sections 541 to 555 of Title

40, Public Buildings, Property, and Works, by Pub. L. 107-217,

Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 234, act June 30, 1949, ch. 288, title I, Sec. 204, 63

Stat. 388, which related to proceeds from transfer, sale, etc., of

property, was transferred to section 485 of former Title 40, and

was repealed and reenacted as sections 571(a), 572 to 574 of Title

40, Public Buildings, Property, and Works, by Pub. L. 107-217,

Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 235, acts June 30, 1949, ch. 288, title II, Sec. 205, 63

Stat. 389; Sept. 5, 1950, ch. 849, Sec. 9, 64 Stat. 591, which

related to policies, regulations, and delegations, was transferred

to section 486 of former Title 40, and was repealed and reenacted

as section 121(a), (b), (c)(2), (d)(1), (2), (e)(1)(A), (B),

(D)-(F), (2)(B), (f)-(h) of Title 40, Public Buildings, Property,

and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116

Stat. 1062, 1304.

Section 236, acts June 30, 1949, ch. 288, title II, Sec. 206, 63

Stat. 390; Aug. 10, 1949, ch. 412, Sec. 12(a), 63 Stat. 591, which

related to surveys of government property and property management

practices, was transferred to section 487 of former Title 40, and

was repealed and reenacted as section 506 of Title 40, Public

Buildings, Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b),

Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 237, act June 30, 1949, ch. 288, title II, Sec. 207, 63

Stat. 391, which related to applicability of antitrust laws to

property disposal, was transferred to section 488 of former Title

40, and was repealed and reenacted as section 559 of Title 40,

Public Buildings, Property, and Works, by Pub. L. 107-217, Secs. 1,

6(b), Aug. 21, 2002, 116 Stat. 1062, 1304.

Section 238, acts June 30, 1949, ch. 288, title II, Sec. 208, 63

Stat. 391; Sept. 5, 1950, ch. 849, Sec. 7(b), (c), 64 Stat. 590,

which related to appointment and compensation of personnel, was

transferred to section 630h of former Title 5, Executive

Departments and Government Officers and Employees, subsequently

transferred to section 758 of former Title 40, and repealed and

reenacted as section 311(a)-(c) of Title 40, Public Buildings,

Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304.

Section 239, act June 30, 1949, ch. 288, title II, Sec. 209, 63

Stat. 392, which related to civil remedies and penalties, was

transferred to section 489 of former Title 40, and was repealed and

reenacted as section 123 of Title 40, Public Buildings, Property,

and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116

Stat. 1062, 1304.

Section 239a, act June 30, 1949, ch. 288, title II, Sec. 210, as

added Sept. 5, 1950, ch. 849, Sec. 5(c), 64 Stat. 580, which

related to operation of buildings and related activities by the

Administrator, was transferred to section 490 of former Title 40,

and was repealed and reenacted as sections 581 to 585(a)(1), (2)

(1st sentence, last sentence (words before "and the obligation")),

(b), 586(a)-(c), 587(a)-(b)(4)(A), (c), 588, 589, 592(a)-(c)(1),

(d), (e) of Title 40, Public Buildings, Property, and Works, by

Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,

1304.

Section 239b, act June 30, 1949, ch. 288, title II, Sec. 211, as

added Sept. 5, 1950, ch. 849, Sec. 5(c), 64 Stat. 580, which

related to motor vehicle identification, was transferred to section

491 of former Title 40, and was repealed and reenacted as sections

601 to 611 of Title 40, Public Buildings, Property, and Works, by

Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,

1304.

Section 240, act June 30, 1949, ch. 288, title II, Sec. 212,

formerly Sec. 210, 63 Stat. 393; renumbered Sept. 5, 1950, ch. 849,

Sec. 5(a), 64 Stat. 580, which related to reports to Congress, was

transferred to section 492 of former Title 40, and was repealed and

reenacted as section 126 of Title 40, Public Buildings, Property,

and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116

Stat. 1062, 1304.

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41 USC SUBCHAPTER IV - PROCUREMENT PROVISIONS 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 405, 414a, 418a, 421

of this title; title 5 sections 595, 7342; title 6 section 426;

title 7 section 1736a; title 10 sections 2562, 2576, 2667, 2676,

2691, 2696, 2854a, 2878, 7305, 9444, 9781; title 14 sections 92,

93, 641; title 15 sections 205f, 205l, 637; title 16 sections 670o,

793; title 22 section 277d-44; title 25 section 450j; title 28

section 524; title 31 sections 3718, 9703; title 38 section 3720;

title 40 sections 102, 111, 311, 1308, 3304, 3305; title 42

sections 1592d, 12651, 13556; title 43 section 1736; title 44

section 311; title 49 sections 103, 40110.

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41 USC Sec. 251 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 251. Declaration of purpose of this subchapter

-STATUTE-

The purpose of this subchapter is to facilitate the procurement

of property and services.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 301, 63 Stat. 393; July

12, 1952, ch. 703, Sec. 1(m), 66 Stat. 594.)

-MISC1-

AMENDMENTS

1952 - Act July 12, 1952, substituted "property" for "supplies".

EFFECTIVE DATE OF 1996 AMENDMENT

Pub. L. 104-106, div. D, title XLIV, Sec. 4401, Feb. 10, 1996,

110 Stat. 678, provided that:

"(a) Effective Date. - Except as otherwise provided in this

division [div. D (Secs. 4001-4402) of Pub. L. 104-106, see Short

Title of 1996 Amendment note below], this division and the

amendments made by this division shall take effect on the date of

the enactment of this Act [Feb. 10, 1996].

"(b) Applicability of Amendments. -

"(1) Solicitations, unsolicited proposals, and related

contracts. - An amendment made by this division shall apply, in

the manner prescribed in the final regulations promulgated

pursuant to section 4402 [set out below] to implement such

amendment, with respect to any solicitation that is issued, any

unsolicited proposal that is received, and any contract entered

into pursuant to such a solicitation or proposal, on or after the

date described in paragraph (3).

"(2) Other matters. - An amendment made by this division shall

also apply, to the extent and in the manner prescribed in the

final regulations promulgated pursuant to section 4402 to

implement such amendment, with respect to any matter related to -

"(A) a contract that is in effect on the date described in

paragraph (3);

"(B) an offer under consideration on the date described in

paragraph (3); or

"(C) any other proceeding or action that is ongoing on the

date described in paragraph (3).

"(3) Demarcation date. - The date referred to in paragraphs (1)

and (2) is the date specified in such final regulations. The date

so specified shall be January 1, 1997, or any earlier date that

is not within 30 days after the date on which such final

regulations are published."

EFFECTIVE DATE OF 1994 AMENDMENT

Pub. L. 103-355, title X, Sec. 10001, Oct. 13, 1994, 108 Stat.

3404, provided that:

"(a) Effective Date. - Except as otherwise provided in this Act,

this Act [see Short Title of 1994 Amendment note below] and the

amendments made by this Act shall take effect on the date of the

enactment of this Act [Oct. 13, 1994].

"(b) Applicability of Amendments. - (1) An amendment made by this

Act shall apply, in the manner prescribed in the final regulations

promulgated pursuant to section 10002 to implement such amendment

[set out below], with respect to any solicitation that is issued,

any unsolicited proposal that is received, and any contract entered

into pursuant to such a solicitation or proposal, on or after the

date described in paragraph (3).

"(2) An amendment made by this Act shall also apply, to the

extent and in the manner prescribed in the final regulations

promulgated pursuant to section 10002 to implement such amendment,

with respect to any matter related to -

"(A) a contract that is in effect on the date described in

paragraph (3);

"(B) an offer under consideration on the date described in

paragraph (3); or

"(C) any other proceeding or action that is ongoing on the date

described in paragraph (3).

"(3) The date referred to in paragraphs (1) and (2) is the date

specified in such final regulations [Oct. 1, 1995, see 60 F.R.

48231, Sept. 18, 1995]. The date so specified shall be October 1,

1995, or any earlier date that is not within 30 days after the date

on which such final regulations are published.

"(c) Immediate Applicability of Certain Amendments. -

Notwithstanding subsection (b), the amendments made by the

following provisions of this Act apply on and after the date of the

enactment of this Act [Oct. 13, 1994]: sections 1001, 1021, 1031,

1051, 1071, 1092, 1201, 1506(a), 1507, 1554, 2002(a), 2191,

3062(a), 3063, 3064, 3065(a)(1), 3065(b), 3066, 3067, 6001(a),

7101, 7103, 7205, and 7206, the provisions of subtitles A, B, and C

of title III [Secs. 3001-3025], and the provisions of title V [see

Tables for classification]."

EFFECTIVE DATE OF 1984 AMENDMENT

Pub. L. 98-369, div. B, title VII, Sec. 2751, July 18, 1984, 98

Stat. 1203, provided that:

"(a) Except as provided in subsection (b), the amendments made by

this title [see Short Title of 1984 Amendments note below] shall

apply with respect to any solicitation for bids or proposals issued

after March 31, 1985.

"(b) The amendments made by section 2713 [amending section 759 of

former Title 40, Public Buildings, Property, and Works, and

enacting provisions set out as a note under section 759 of former

Title 40] and subtitle D [enacting sections 3551 to 3556 of Title

31, Money and Finance] shall apply with respect to any protest

filed after January 14, 1985."

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

SHORT TITLE OF 1996 AMENDMENT

Pub. L. 104-106, div. D, Sec. 4001, Feb. 10, 1996, 110 Stat. 642,

as amended by Pub. L. 104-208, div. A, title I, Sec. 101(f) [title

VIII, Sec. 808(a)], Sept. 30, 1996, 110 Stat. 3009-314, 3009-393,

provided that: "This division [div. D (Secs. 4001-4402) of Pub. L.

104-106, see Tables for classification] and division E [Secs.

5001-5703 of Pub. L. 104-106, repealed and reenacted, generally, as

subtitle III (Sec. 11101 et seq.) of Title 40, Public Buildings,

Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304, see Tables for complete classification]

may be cited as the 'Clinger-Cohen Act of 1996'."

SHORT TITLE OF 1994 AMENDMENT

Pub. L. 103-355, Sec. 1, Oct. 13, 1994, 108 Stat. 3243, provided

that: "This Act [see Tables for classification] may be cited as the

'Federal Acquisition Streamlining Act of 1994'."

SHORT TITLE OF 1984 AMENDMENTS

Pub. L. 98-577, Sec. 1, Oct. 30, 1984, 98 Stat. 3066, provided

that this Act [enacting sections 253c to 253h, 414a, 418a, and 418b

of this title, repealing section 2303a of Title 10, Armed Forces,

amending sections 253, 253b, 259, 403, and 416 of this title,

sections 2302, 2304, 2311, and 2320 of Title 10, and sections 637

and 644 of Title 15, Commerce and Trade, and enacting provisions

set out as notes under this section, section 416 of this title, and

sections 637 and 644 of Title 15] may be cited as the "Small

Business and Federal Procurement Competition Enhancement Act of

1984".

Pub. L. 98-369, div. B, title VII, Sec. 2701, July 18, 1984, 98

Stat. 1175, provided that: "This title [enacting sections 253a,

253b, 416 to 419 of this title and sections 3551 to 3556 of Title

31, Money and Finance, amending sections 252, 253, 254, 257, 258,

259, 260, 403, 405, and 414 of this title, sections 2301 to 2306,

2310, 2311, 2313, and 2356 of Title 10, Armed Forces, and section

759 of former Title 40, Public Buildings, Property, and Works, and

enacting provisions set out as notes under this section, sections

253, 403, and 407 of this title, section 2304 of Title 10, and

section 759 of former Title 40] may be cited as the 'Competition in

Contracting Act of 1984'."

REGULATIONS

Pub. L. 104-106, div. D, title XLIV, Sec. 4402, Feb. 10, 1996,

110 Stat. 678, provided that:

"(a) Proposed Revisions. - Proposed revisions to the Federal

Acquisition Regulation and such other proposed regulations (or

revisions to existing regulations) as may be necessary to implement

this Act [see Tables for classification] shall be published in the

Federal Register not later than 210 days after the date of the

enactment of this Act [Feb. 10, 1996].

"(b) Public Comment. - The proposed regulations described in

subsection (a) shall be made available for public comment for a

period of not less than 60 days.

"(c) Final Regulations. - Final regulations shall be published in

the Federal Register not later than 330 days after the date of

enactment of this Act [Feb. 10, 1996].

"(d) Modifications. - Final regulations promulgated pursuant to

this section to implement an amendment made by this Act may provide

for modification of an existing contract without consideration upon

the request of the contractor.

"(e) Savings Provisions. -

"(1) Validity of prior actions. - Nothing in this division

[div. D (Secs. 4001-4402) of Pub. L. 104-106, see Short Title of

1996 Amendment note above] shall be construed to affect the

validity of any action taken or any contract entered into before

the date specified in the regulations pursuant to section

4401(b)(3) [set out as an Effective Date of 1996 Amendment note

above] except to the extent and in the manner prescribed in such

regulations.

"(2) Renegotiation and modification of preexisting contracts. -

Except as specifically provided in this division, nothing in this

division shall be construed to require the renegotiation or

modification of contracts in existence on the date of the

enactment of this Act [Feb. 10, 1996].

"(3) Continued applicability of preexisting law. - Except as

otherwise provided in this division, a law amended by this

division shall continue to be applied according to the provisions

thereof as such law was in effect on the day before the date of

the enactment of this Act until -

"(A) the date specified in final regulations implementing the

amendment of that law (as promulgated pursuant to this

section); or

"(B) if no such date is specified in regulations, January 1,

1997."

Pub. L. 103-355, title X, Sec. 10002, Oct. 13, 1994, 108 Stat.

3404, provided that:

"(a) Proposed Revisions. - Proposed revisions to the Federal

Acquisition Regulation and such other proposed regulations (or

revisions to existing regulations) as may be necessary to implement

this Act [see Short Title of 1994 Amendment note above] shall be

published in the Federal Register not later than 210 days after the

date of the enactment of this Act [Oct. 13, 1994].

"(b) Public Comment. - The proposed regulations described in

subsection (a) shall be made available for public comment for a

period of not less than 60 days.

"(c) Final Regulations. - Final regulations shall be published in

the Federal Register not later than 330 days after the date of

enactment of this Act.

"(d) Modifications. - Final regulations promulgated pursuant to

this section to implement an amendment made by this Act may provide

for modification of an existing contract without consideration upon

the request of the contractor.

"(e) Requirement for Clarity. - Officers and employees of the

Federal Government who prescribe regulations to implement this Act

and the amendments made by this Act shall make every effort

practicable to ensure that the regulations are concise and are

easily understandable by potential offerors as well as by

Government officials.

"(f) Savings Provisions. - (1) Nothing in this Act shall be

construed to affect the validity of any action taken or any

contract entered into before the date specified in the regulations

pursuant to section 10001(b)(3) [see Effective Date of 1994

Amendment note above] except to the extent and in the manner

prescribed in such regulations.

"(2) Except as specifically provided in this Act, nothing in this

Act shall be construed to require the renegotiation or modification

of contracts in existence on the date of the enactment of this Act

[Oct. 13, 1994].

"(3) Except as otherwise provided in this Act, a law amended by

this Act shall continue to be applied according to the provisions

thereof as such law was in effect on the day before the date of the

enactment of this Act until -

"(A) the date specified in final regulations implementing the

amendment of that law (as promulgated pursuant to this section);

"(B) if no such date is specified in regulations, October 1,

1995."

SEPARABILITY

Section 604, formerly Sec. 504, of act June 30, 1949, renumbered

by act Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583,

provided that: "If any provision of this Act [see Tables for

classification], or the application thereof to any person or

circumstances, is held invalid, the remainder of this Act, and the

application of such provision to other persons or circumstances,

shall not be affected thereby."

EVALUATION BY COMPTROLLER GENERAL

Pub. L. 103-355, title X, Sec. 10003, Oct. 13, 1994, 108 Stat.

3405, provided that:

"(a) Evaluation Relating to Issuance of Regulations. - Not later

than 180 days after the issuance in final form of revisions to the

Federal Acquisition Regulation pursuant to section 10002 [set out

above], the Comptroller General shall submit to Congress a report

evaluating compliance with such section.

"(b) Evaluation of Implementation of Regulations. - Not later

than 18 months after issuance in final form of revisions to the

Federal Acquisition Regulation pursuant to section 10002, the

Comptroller General shall submit to the committees referred to in

subsection (c) a report evaluating the effectiveness of the

regulations implementing this Act [see Short Title of 1994

Amendment note above] in streamlining the acquisition system and

fulfilling the other purposes of this Act.

"(c) Committees Designated To Receive the Reports. - The

Comptroller General shall submit the reports required by this

section to -

"(1) the Committees on Governmental Affairs, on Armed Services,

and on Small Business of the Senate; and

"(2) the Committees on Government Operations [now Committee on

Government Reform], on Armed Services, and on Small Business of

the House of Representatives."

CONGRESSIONAL STATEMENT OF PURPOSE

Pub. L. 98-577, title I, Sec. 101, Oct. 30, 1984, 98 Stat. 3066,

provided that: "The purposes of this Act are to -

"(1) eliminate procurement procedures and practices that

unnecessarily inhibit full and open competition for contracts;

"(2) promote the use of contracting opportunities as a means to

expand the industrial base of the United States in order to

ensure adequate responsive capability of the economy to the

increased demands of the Government in times of national

emergency; and

"(3) foster opportunities for the increased participation in

the competitive procurement process of small business concerns

and small business concerns owned and controlled by socially and

economically disadvantaged individuals."

COMMISSION ON GOVERNMENT PROCUREMENT

Pub. L. 91-129, Nov. 26, 1969, 83 Stat. 269, as amended by Pub.

L. 92-47, July 9, 1971, 85 Stat. 102, established the Commission on

Government Procurement, which was to study and investigate

statutes, rules, regulations, procedures, and practices affecting

Government procurement and to submit a final report to Congress on

or before Dec. 31, 1972, on the results of this study, including

recommendations for changes designed to promote economy,

efficiency, and effectiveness in the procurement of goods,

services, and facilities by and for the executive branch of the

Government. The Commission terminated 120 days after submission of

the final report.

-EXEC-

EX. ORD. NO. 13005. EMPOWERMENT CONTRACTING

Ex. Ord. No. 13005, May 21, 1996, 61 F.R. 26069, provided:

In order to promote economy and efficiency in Federal

procurement, it is necessary to secure broad-based competition for

Federal contracts. This broad competition is best achieved where

there is an expansive pool of potential contractors capable of

producing quality goods and services at competitive prices. A great

and largely untapped opportunity for expanding the pool of such

contractors can be found in this Nation's economically distressed

communities.

Fostering growth of Federal contractors in economically

distressed communities and ensuring that those contractors become

viable businesses for the long term will promote economy and

efficiency in Federal procurement and help to empower those

communities. Fostering growth of long-term viable contractors will

be promoted by offering appropriate incentives to qualified

businesses.

Accordingly, by the authority vested in me as President by the

Constitution and the laws of the United States, including section

486(a) [now 121(a)] of title 40, United States Code, and section

301 of title 3, United States Code, it is hereby ordered as

follows:

Section 1. Policy. The purpose of this order is to strengthen the

economy and to improve the efficiency of the Federal procurement

system by encouraging business development that expands the

industrial base and increases competition.

Sec. 2. Empowerment Contracting Program. In consultation with the

Secretaries of the Departments of Housing and Urban Development,

Labor, and Defense; the Administrator of General Services; the

Administrator of the National Aeronautics and Space Administration;

the Administrator of the Small Business Administration; and the

Administrator for Federal Procurement Policy, the Secretary of the

Department of Commerce shall develop policies and procedures to

ensure that agencies, to the extent permitted by law, grant

qualified large businesses and qualified small businesses

appropriate incentives to encourage business activity in areas of

general economic distress, including a price or an evaluation

credit, when assessing offers for government contracts in

unrestricted competitions, where the incentives would promote the

policy set forth in this order. In developing such policies and

procedures, the Secretary shall consider the size of the qualified

businesses.

Sec. 3. Monitoring and Evaluation. The Secretary shall:

(a) monitor the implementation and operation of the policies and

procedures developed in accordance with this order;

(b) develop a process to ensure the proper administration of the

program and to reduce the potential for fraud by the intended

beneficiaries of the program;

effectiveness of the policies and procedures developed in

accordance with this order; and

(d) by December 1 of each year, issue a report to the President

on the status and effectiveness of the program.

Sec. 4. Implementation Guidelines. In implementing this order,

the Secretary shall:

(a) issue rules, regulations, and guidelines necessary to

implement this order, including a requirement for the periodic

review of the eligibility of qualified businesses and distressed

areas;

(b) draft all rules, regulations, and guidelines necessary to

implement this order within 90 days of the date of this order; and

regulations, and guidelines adopted and implemented in accordance

with this order minimize the administrative burden on affected

agencies and the procurement process.

Sec. 5. Definitions. For purposes of this Executive order:

(a) "Agency" means any authority of the United States that is an

"agency" under 44 U.S.C. 3502(1), other than those considered to be

independent regulatory agencies, as defined in 44 U.S.C. 3502(10).

(b) "Area of general economic distress" shall be defined, for all

urban and rural communities, as any census tract that has a poverty

rate of at least 20 percent or any designated Federal Empowerment

Zone, Supplemental Empowerment Zone, Enhanced Enterprise Community,

or Enterprise Community. In addition, the Secretary may designate

as an area of general economic distress any additional rural or

Indian reservation area after considering the following factors:

(1) Unemployment rate;

(2) Degree of poverty;

(3) Extent of outmigration; and

(4) Rate of business formation and rate of business growth.

not-for-profit trade or business that (1) employs a significant

number of residents from the area of general economic distress; and

(2) either has a significant physical presence in the area of

general economic distress or has a direct impact on generating

significant economic activity in the area of general economic

distress.

(d) "Qualified small business" means a small for-profit or

not-for-profit trade or business that (1) employs a significant

number of residents from the area of general economic distress; (2)

has a significant physical presence in the area of general economic

distress; or (3) has a direct impact on generating significant

economic activity in the area of general economic distress.

(e) "Secretary" means the Secretary of Commerce.

Sec. 6. Agency Authority. Nothing in this Executive order shall

be construed as displacing the agencies' authority or

responsibilities, as authorized by law, including specifically

other programs designed to promote the development of small or

disadvantaged businesses.

Sec. 7. Judicial Review. This Executive order does not create any

right or benefit, substantive or procedural, enforceable at law or

equity by a party against the United States, its agencies or

instrumentalities, its officers or employees, or any other person.

William J. Clinton.

EX. ORD. NO. 13202. PRESERVATION OF OPEN COMPETITION AND GOVERNMENT

NEUTRALITY TOWARDS GOVERNMENT CONTRACTORS' LABOR RELATIONS ON

FEDERAL AND FEDERALLY FUNDED CONSTRUCTION PROJECTS

Ex. Ord. No. 13202, Feb. 17, 2001, 66 F.R. 11225, as amended by

Ex. Ord. No. 13208, Apr. 6, 2001, 66 F.R. 18717, provided:

By the authority vested in me as President by the Constitution

and laws of the United States of America, including the Federal

Property and Administrative Services Act, 40 U.S.C. 471 et seq.

[now chapters 1 to 11 of Title 40, Public Buildings, Property, and

Works, and title III of the Act of June 30, 1949 (41 U.S.C. 251 et

seq.)], and in order to (1) promote and ensure open competition on

Federal and federally funded or assisted construction projects; (2)

maintain Government neutrality towards Government contractors'

labor relations on Federal and federally funded or assisted

construction projects; (3) reduce construction costs to the Federal

Government and to the taxpayers; (4) expand job opportunities,

especially for small and disadvantaged businesses; and (5) prevent

discrimination against Government contractors or their employees

based upon labor affiliation or lack thereof; thereby promoting the

economical, nondiscriminatory, and efficient administration and

completion of Federal and federally funded or assisted construction

projects, it is hereby ordered that:

Section 1. To the extent permitted by law, any executive agency

awarding any construction contract after the date of this order, or

obligating funds pursuant to such a contract, shall ensure that

neither the awarding Government authority nor any construction

manager acting on behalf of the Government shall, in its bid

specifications, project agreements, or other controlling documents:

(a) Require or prohibit bidders, offerors, contractors, or

subcontractors to enter into or adhere to agreements with one or

more labor organizations, on the same or other related construction

project(s); or

(b) Otherwise discriminate against bidders, offerors,

contractors, or subcontractors for becoming or refusing to become

or remain signatories or otherwise to adhere to agreements with one

or more labor organizations, on the same or other related

construction project(s).

subcontractors from voluntarily entering into agreements described

in subsection (a).

Sec. 2. Contracts awarded before the date of this order, and

subcontracts awarded pursuant to such contracts, whenever awarded,

shall not be governed by this order.

Sec. 3. To the extent permitted by law, any executive agency

issuing grants, providing financial assistance, or entering into

cooperative agreements for construction projects, shall ensure that

neither the bid specifications, project agreements, nor other

controlling documents for construction contracts awarded after the

date of this order by recipients of grants or financial assistance

or by parties to cooperative agreements, nor those of any

construction manager acting on their behalf, shall contain any of

the requirements or prohibitions set forth in section 1(a) or (b)

of this order.

Sec. 4. In the event that an awarding authority, a recipient of

grants or financial assistance, a party to a cooperative agreement,

or a construction manager acting on behalf of the foregoing,

performs in a manner contrary to the provisions of sections 1 or 3

of this order, the executive agency awarding the contract, grant,

or assistance shall take such action, consistent with law and

regulation, as the agency determines may be appropriate.

Sec. 5. (a) The head of an executive agency may exempt a

particular project, contract, subcontract, grant, or cooperative

agreement from the requirements of any or all of the provisions of

sections 1 and 3 of this order, if the agency head finds that

special circumstances require an exemption in order to avert an

imminent threat to public health or safety or to serve the national

security.

(b) A finding of "special circumstances" under section 5(a) may

not be based on the possibility or presence of a labor dispute

concerning the use of contractors or subcontractors who are

nonsignatories to, or otherwise do not adhere to, agreements with

one or more labor organizations, or concerning employees on the

project who are not members of or affiliated with a labor

organization.

awarding authority, a recipient of grants or financial assistance,

a party to a cooperative agreement, or a construction manager

acting on behalf of the foregoing, may exempt a particular project

from the requirements of any or all of the provisions of sections 1

and 3 of this order, if the agency head finds: (i) that the

awarding authority, recipient of grants or financial assistance,

party to a cooperative agreement, or construction manager acting on

behalf of the foregoing had issued or was a party to, as of the

date of this order, bid specifications, project agreements,

agreements with one or more labor organizations, or other

controlling documents with respect to that particular project,

which contained any of the requirements or prohibitions set forth

in sections 1(a) or (b) of this order; and (ii) that one or more

construction contracts subject to such requirements or prohibitions

had been awarded as of the date of this order.

Sec. 6. (a) The term "construction contract" as used in this

order means any contract for the construction, rehabilitation,

alteration, conversion, extension, or repair of buildings,

highways, or other improvements to real property.

(b) The term "executive agency" as used in this order shall have

the same meaning it has in 5 U.S.C. 105, excluding the General

Accounting Office.

have the same meaning it has in 42 U.S.C. 2000e(d).

Sec. 7. With respect to Federal contracts, within 60 days of the

issuance of this order, the Federal Acquisition Regulatory Council

shall take whatever action is required to amend the Federal

Acquisition Regulation in order to implement the provisions of this

order.

Sec. 8. As it relates to project agreements, Executive Order

12836 of February 1, 1993, which, among other things, revoked

Executive Order 12818 of October 23, 1992, is revoked.

Sec. 9. The Presidential Memorandum of June 5, 1997, entitled

"Use of Project Labor Agreements for Federal Construction Projects"

(the "Memorandum"), is also revoked.

Sec. 10. The heads of executive departments and agencies shall

revoke expeditiously any orders, rules, regulations, guidelines, or

policies implementing or enforcing the Memorandum or Executive

Order 12836 of February 1, 1993, as it relates to project

agreements, to the extent consistent with law.

Sec. 11. This order is intended only to improve the internal

management of the executive branch and is not intended to, nor does

it, create any right to administrative or judicial review, or any

right, whether substantive or procedural, enforceable by any party

against the United States, its agencies or instrumentalities, its

officers or employees, or any other person.

George W. Bush.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-End-

-CITE-

41 USC Sec. 252 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 252. Purchases and contracts for property

-STATUTE-

(a) Applicability of subchapter; delegation of authority

Executive agencies shall make purchases and contracts for

property and services in accordance with the provisions of this

subchapter and implementing regulations of the Administrator; but

this subchapter does not apply -

(1) to the Department of Defense, the Coast Guard, and the

National Aeronautics and Space Administration; or

(2) when this subchapter is made inapplicable pursuant to

section 113(e) of title 40 or any other law, but when this

subchapter is made inapplicable by any such provision of law,

sections 5 and 8 of this title shall be applicable in the absence

of authority conferred by statute to procure without advertising

or without regard to said section 5 of this title.

(b) Small business concerns; share of business

It is the declared policy of the Congress that a fair proportion

of the total purchases and contracts for property and services for

the Government shall be placed with small business concerns.

buildings or improvements; contracts for construction or repair

of buildings, roads, sidewalks, sewers, mains, etc.; Federal

Highway Lands Program

(1) This subchapter does not (A) authorize the erection, repair,

or furnishing of any public building or public improvement, but

such authorization shall be required in the same manner as

heretofore, or (B) permit any contract for the construction or

repair of buildings, roads, sidewalks, sewers, mains, or similar

items using procedures other than sealed-bid procedures under

section 253(a)(2)(A) of this title, if the conditions set forth in

section 253(a)(2)(A) of this title apply or the contract is to be

performed outside the United States.

(2) Section 253(a)(2)(A) of this title does not require the use

of sealed-bid procedures in cases in which section 204(e) of title

23 applies.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 302, 63 Stat. 393; July

12, 1952, ch. 703, Sec. 1(m), 66 Stat. 594; Pub. L. 85-800, Secs.

1-3, Aug. 28, 1958, 72 Stat. 966; Pub. L. 89-343, Secs. 1, 2, Nov.

8, 1965, 79 Stat. 1303; Pub. L. 89-348, Sec. 1(2), Nov. 8, 1965, 79

Stat. 1310; Pub. L. 90-268, Sec. 4, Mar. 16, 1968, 82 Stat. 50;

Pub. L. 93-356, Sec. 3, July 25, 1974, 88 Stat. 390; Pub. L.

98-191, Sec. 9(a)(1), Dec. 1, 1983, 97 Stat. 1331; Pub. L. 98-369,

div. B, title VII, Sec. 2714(a)(1), July 18, 1984, 98 Stat. 1184.)

-COD-

CODIFICATION

"Section 113(e) of title 40" substituted in subsec. (a)(2) for

"section 602(d) of this Act", meaning section 602(d) of the Federal

Property and Administrative Services Act of 1949, on authority of

Pub. L. 107-217, Sec. 5(c), Aug. 21, 2002, 116 Stat. 1303, the

first section of which enacted Title 40, Public Buildings,

Property, and Works.

-MISC1-

AMENDMENTS

1984 - Subsec. (b). Pub. L. 98-369, Sec. 2714(a)(1)(A), struck

out provisions that whenever it was proposed to make a contract or

purchase in excess of $10,000 by negotiation and without

advertising, pursuant to the authority of subsec. (c)(7) of this

section, suitable advance publicity, as determined by the agency

head with due regard to the type of property involved and other

relevant considerations, had to be given for a period of at least

fifteen days, wherever practicable, as determined by the agency

head.

Subsec. (c)(1). Pub. L. 98-369, Sec. 2714(a)(1)(B), redesignated

subsec. (e) as (c)(1), substituted reference to this subchapter for

reference to this section in provisions preceding subpar. (A), in

subpar. (B), substituted provisions relating to contracts using

procedures other than sealed-bid procedures under section

253(a)(2)(A) of this title for provisions relating to contracts

negotiated without advertising as required by section 253 of this

title. Former subsec. (c), which related to conditions for

negotiated purchases and contracts for property, was struck out.

Subsec. (c)(2). Pub. L. 98-369, Sec. 2714(a)(1)(B), added par.

(2).

Subsec. (d). Pub. L. 98-369, Sec. 2714(a)(1)(B), struck out

subsec. (d) which related to bids in violation of the antitrust

laws.

Subsec. (e). Pub. L. 98-369, Sec. 2714(a)(1)(B), redesignated

subsec. (e) as (c)(1).

Subsec. (f). Pub. L. 98-369, Sec. 2714(a)(1)(B), struck out

subsec. (f) which related to specification of container size in

contracts for the carriage of Government property in other than

Government-owned cargo containers.

1983 - Subsec. (c)(3). Pub. L. 98-191 substituted "$25,000" for

"$10,000".

1974 - Subsec. (c)(3). Pub. L. 93-356 substituted "$10,000" for

"$2,500".

1968 - Subsec. (f). Pub. L. 90-268 added subsec. (f).

1965 - Subsec. (a). Pub. L. 89-343, Sec. 1, substituted

provisions requiring executive agencies to make purchases and

contracts for property and services in accordance with the

provisions of this subchapter and implementing regulations of the

Administrator, exempting the Department of Defense, the Coast

Guard, and the National Aeronautics and Space Administration from

the application of this subchapter, and making this subchapter

inapplicable when it is so made by law, for provisions which made

this subchapter applicable to purchases and contracts for property

or services made by the General Services Administration for the use

of such agency or otherwise, or by any other executive agency

(except the departments and activities specified in section 2303(a)

of Title 10) in conformity with authority to apply such provisions

delegated by the Administrator in his discretion.

Subsec. (c)(11). Pub. L. 89-348 struck out proviso which required

a semiannual report to be furnished to the Congress setting forth

the name of each contractor with whom a contract has been entered

into pursuant to this paragraph, the amount of the contract, and,

with due consideration given to the national security, a

description of the work required to be performed thereunder.

Subsec. (c)(15). Pub. L. 89-343, Sec. 2, inserted "except that

section 254 of this title shall apply to purchases and contracts

made without advertising under this paragraph".

1958 - Subsec. (a). Pub. L. 85-800, Sec. 1, among other changes,

substituted "or" for "and" in par. (1), substituted provisions

excepting application of subchapter to departments and activities

in section 2303(a) of title 10 for provisions which excepted

agencies named in section 151(a) of this title, substituted

provisions applying subchapter to agencies in conformity with

authority delegated by Administrator in his discretion for

provisions which applied chapter in conformity with authority

delegated him pursuant to this subsection, and eliminated

provisions authorizing Administrator to delegate authority for use

of two or more agencies, and other cases where delegation is

advantageous to Government in par. (2).

Subsec. (c). Pub. L. 85-800, Sec. 2, substituted in par. (3)

"$2,500" for "$1,000", struck out proviso barring agencies other

than General Services Administration from making purchases in

excess of $500 except under authority to procure for two or more

agencies, added par. (9), and renumbered former pars. (9) to (14)

as pars. (10) to (15).

Subsec. (e). Pub. L. 85-800, Sec. 3, substituted "(10) to (12),

or (14)" for "(9) to (11), or (13)".

1952 - Subsecs. (a) to (c). Act July 12, 1952, substituted

"property" for "supplies" wherever appearing.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-369 applicable with respect to any

solicitation for bids or proposals issued after Mar. 31, 1985, see

section 2751 of Pub. L. 98-369, set out as a note under section 251

of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

-TRANS-

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, and assets of

the Coast Guard, including the authorities and functions of the

Secretary of Transportation relating thereto, to the Department of

Homeland Security, and for treatment of related references, see

sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic

Security, and the Department of Homeland Security Reorganization

Plan of November 25, 2002, as modified, set out as a note under

section 542 of Title 6.

-MISC2-

EMERGENCY RELIEF FOR SMALL BUSINESS CONCERNS WITH GOVERNMENT

CONTRACTS

Pub. L. 94-190, Dec. 31, 1975, 89 Stat. 1095, provided:

"SHORT TITLE

"Section 1. This Act may be cited as the 'Small Business

Emergency Relief Act'.

"POLICY

"Sec. 2. It is the policy of Congress to provide relief to small

business concerns which have fixed-price Government contracts in

cases where such concerns have suffered or can be expected to

suffer serious financial loss because of significant and

unavoidable difficulties during performance because of the energy

crisis or rapid and unexpected escalations of contract costs.

"DEFINITIONS

"Sec. 3. As used in this Act -

"(1) the term 'executive agency' means an executive department,

a military department, and an independent establishment within

the meaning of sections 101, 102, and 104(1) respectively, of

title 5, United States Code, and also a wholly owned Government

corporation within the meaning of section 101 of the Government

Corporation Control Act [section 9101(3) of Title 31, Money and

Finance]; and

"(2) the term 'small business concern' means any concern which

falls under the size limitations of the 'Small Business

Administrator's Definitions of Small Business for Government

Procurement'.

"AUTHORITY

"Sec. 4. (a) Pursuant to an application by a small business

concern, the head of any executive agency may terminate for the

convenience of the Government any fixed-price contract between that

agency and such small business concern, upon a finding that -

"(1) during the performance of the contract, the concern has

suffered or can be expected to suffer serious financial loss due

to significant unanticipated cost increases directly affecting

the cost of contract compliance; and

"(2) the conditions which have caused or are causing such cost

increases were, or are being, experienced generally by other

small business concerns in the market at the same time and are

not caused by negligence, underbidding, or other special

management factors peculiar to that small business concern.

"(b) Upon application under subsection (a) by a small business

concern to terminate a fixed-price contract between an executive

agency and such small business concern, the head of the executive

agency may modify the terms of the contract in lieu of termination

for the convenience of the Government only if he finds after review

of the application that -

"(1)(a) the agency would reprocure the supplies or services in

the event that the contract was terminated for the convenience of

the Government; and

"(b) the cost of terminating the contract for the convenience

of the Government plus the cost of reprocurement would exceed the

amount of the contract as modified; and

"(2) Any such modification shall be made in compliance with

cost comparison and compensation guidelines to be issued by the

Administrator of the Office of Federal Procurement Policy. Such

cost comparison and compensation guidelines shall be promulgated

by the Administrator not later than 10 days after enactment of

this Act [Dec. 31, 1975].

"(c) If a small business concern in performance of a fixed-price

Government contract experiences or has experienced shortages of

energy, petroleum products, or products or components manufactured

or derived therefrom or impacted thereby, and such shortages result

in a delay in the performance of a contract, the head of the

agency, or his designee, shall provide by modification to the

contract for an appropriate extension of the contract delivery date

or period of performance.

"(d) A small business concern requesting relief under subsection

(a) shall support that request with the following documentation and

certification:

"(1) a brief description of the contract, indicating the date

of execution and of any amendment thereto, the items being

procured, the price and delivery schedule, and any revision

thereof, and any other special contractual provision as may be

relevant to the request;

"(2) a history of performance indicating when work under the

contract or commitment was begun, the progress made as of the

date of the application, an exact statement of the contractor's

remaining obligations, and the contractor's expectations

regarding completion thereof;

"(3) a statement of the factors which have caused the loss

under the contract;

"(4) a statement as to the course of events anticipated if the

request is denied;

"(5) a statement of payments received, payments due and

payments yet to be received or to become due, including advance

and progress payments, and amounts withheld by the Government,

and information as to other obligations of the Government, if

any, which are yet to be performed under the contract;

"(6) a statement and evidence of the contractor's original

breakdown of estimated costs, including contingency allowances

and profit;

"(7) a statement and evidence of the contractor's present

estimate of total costs under the contract if enabled to

complete, broken down between costs accrued to date of request,

and runout costs, and as between costs for which the contractor

has made payment and those for which he is indebted at the time

of the request;

"(8) a statement and evidence of the contractor's estimate of

the final price of the contract, giving effect to all escalation,

changes, extras, and other comparable factors known or

contemplated by the contractor;

"(9) a statement of any claims known or contemplated by the

contractor against the Government involving the contract in

question, other than those referred to under (8) above;

"(10) an estimate of the contractor's total profit or loss

under the contract if required to complete at the original

contract price;

"(11) an estimate of the total profits from other Government

business, and all other sources, during the period from the date

of the first contract involved to the latest estimated date of

completion of any other contracts involved;

"(12) balance sheets, certified by a certified public

accountant, as of the end of the contractor's fiscal year first

preceding the date of the first contract, as of the end of each

subsequent fiscal year, and as of the date of the request

together with income statements for annual periods subsequent to

the date of the first balance sheet; and

"(13) a list of all salaries, bonuses, and all other forms of

compensation of the principal officers or partners and of all

dividends and other withdrawals, and all payments to stockholders

in any form since the date of the first contract involved.

"DELEGATION

"Sec. 5. The head of each executive agency shall delegate

authority conferred by this Act, to the extent practicable, to an

appropriate level that will permit the expeditious processing of

applications under this Act and to insure the uniformity of its

application.

"LIMITATIONS

"Sec. 6. (a) The authority prescribed in section 4(a) shall apply

only to contracts which have not been completely performed or

otherwise terminated and which were entered into during the period

from August 15, 1971, through October 31, 1974.

"(b) The authority conferred by section 4(a) of this Act shall

terminate September 30, 1976."

NON-APPLICABILITY OF NATIONAL EMERGENCIES ACT

The provisions of the National Emergencies Act (Pub. L. 94-412,

Sept. 14, 1976, 90 Stat. 1255) not applicable to the powers and

authorities conferred by this section and actions taken hereunder,

see section 1651 of Title 50, War and National Defense.

-EXEC-

EXECUTIVE ORDER NO. 10936

Ex. Ord. No. 10936, Apr. 24, 1961, 26 F.R. 3555, which provided

for the reporting and investigation of identical bids in connection

with the procurement of goods or services, was revoked by Ex. Ord.

No. 12430, July 6, 1983, 48 F.R. 31371.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 260 of this title; title

22 sections 2509, 4024; title 23 section 140; title 30 section

1711; title 38 section 8122; title 50 sections 1432, 1651.

-End-

-CITE-

41 USC Sec. 252a 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 252a. Simplified acquisition threshold

-STATUTE-

(a) Simplified acquisition threshold

For purposes of acquisitions by executive agencies, the

simplified acquisition threshold is as specified in section 403(11)

of this title.

(b) Inapplicable laws

No law properly listed in the Federal Acquisition Regulation

pursuant to section 429 of this title shall apply to or with

respect to a contract or subcontract that is not greater than the

simplified acquisition threshold.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 302A, as added and amended

Pub. L. 103-355, title IV, Secs. 4003, 4103(a), Oct. 13, 1994, 108

Stat. 3338, 3341.)

-MISC1-

AMENDMENTS

1994 - Subsec. (b). Pub. L. 103-355, Sec. 4103(a), added subsec.

(b).

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 252b 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 252b. Implementation of simplified acquisition procedures

-STATUTE-

The simplified acquisition procedures contained in the Federal

Acquisition Regulation pursuant to section 427 of this title shall

apply in executive agencies as provided in such section.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 302B, as added Pub. L.

103-355, title IV, Sec. 4203(b), Oct. 13, 1994, 108 Stat. 3346.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 252c 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 252c. Implementation of electronic commerce capability

-STATUTE-

(a) Implementation of electronic commerce capability

(1) The head of each executive agency shall implement the

electronic commerce capability required by section 426 of this

title.

(2) In implementing the electronic commerce capability pursuant

to paragraph (1), the head of an executive agency shall consult

with the Administrator for Federal Procurement Policy.

(b) Designation of agency official

The head of each executive agency shall designate a program

manager to implement the electronic commerce capability for that

agency. The program manager shall report directly to an official at

a level not lower than the senior procurement executive designated

for the executive agency under section 414(3) of this title.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 302C, as added Pub. L.

103-355, title IX, Sec. 9003, Oct. 13, 1994, 108 Stat. 3403;

amended Pub. L. 105-85, div. A, title VIII, Sec. 850(f)(4)(A), Nov.

18, 1997, 111 Stat. 1850.)

-MISC1-

AMENDMENTS

1997 - Pub. L. 105-85 amended section catchline and text

generally. Prior to amendment, text read as follows:

"(a) Implementation of FACNET Capability. - (1) The head of each

executive agency shall implement the Federal acquisition computer

network ('FACNET') capability required by section 426 of this

title.

"(2) In implementing the FACNET capability pursuant to paragraph

(1), the head of an executive agency shall consult with the

Administrator for Federal Procurement Policy.

"(b) Designation of Agency Official. - The head of each executive

agency shall designate a program manager to have responsibility for

implementation of FACNET capability for that agency and otherwise

to implement this section. Such program manager shall report

directly to the senior procurement executive designated for the

executive agency under section 414(3) of this title."

EFFECTIVE DATE OF 1997 AMENDMENT

Amendment by Pub. L. 105-85 effective 180 days after Nov. 18,

1997, see section 850(g) of Pub. L. 105-85, set out as a note under

section 2302c of Title 10, Armed Forces.

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 253 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253. Competition requirements

-STATUTE-

(a) Procurement through full and open competition; competitive

procedures

(1) Except as provided in subsections (b), (c), and (g) of this

section and except in the case of procurement procedures otherwise

expressly authorized by statute, an executive agency in conducting

a procurement for property or services -

(A) shall obtain full and open competition through the use of

competitive procedures in accordance with the requirements of

this subchapter and the Federal Acquisition Regulation; and

(B) shall use the competitive procedure or combination of

competitive procedures that is best suited under the

circumstances of the procurement.

(2) In determining the competitive procedures appropriate under

the circumstance, an executive agency -

(A) shall solicit sealed bids if -

(i) time permits the solicitation, submission, and evaluation

of sealed bids;

(ii) the award will be made on the basis of price and other

price-related factors;

(iii) it is not necessary to conduct discussions with the

responding sources about their bids; and

(iv) there is a reasonable expectation of receiving more than

one sealed bid; and

(B) shall request competitive proposals if sealed bids are not

appropriate under clause (A).

(b) Exclusion of particular source; restriction of solicitation to

small business concerns

(1) An executive agency may provide for the procurement of

property or services covered by this section using competitive

procedures but excluding a particular source in order to establish

or maintain any alternative source or sources of supply for that

property or service if the agency head determines that to do so -

(A) would increase or maintain competition and would likely

result in reduced overall costs for such procurement, or for any

anticipated procurement, of such property or services;

(B) would be in the interest of national defense in having a

facility (or a producer, manufacturer, or other supplier)

available for furnishing the property or service in case of a

national emergency or industrial mobilization;

establishing or maintaining an essential engineering, research,

or development capability to be provided by an educational or

other nonprofit institution or a federally funded research and

development center;

(D) would ensure the continuous availability of a reliable

source of supply of such property or service;

(E) would satisfy projected needs for such property or service

determined on the basis of a history of high demand for the

property or service; or

(F) in the case of medical supplies, safety supplies, or

emergency supplies, would satisfy a critical need for such

supplies.

(2) An executive agency may provide for the procurement of

property or services covered by this section using competitive

procedures, but excluding other than small business concerns in

furtherance of sections 638 and 644 of title 15.

(3) A contract awarded pursuant to the competitive procedures

referred to in paragraphs (1) and (2) shall not be subject to the

justification and approval required by subsection (f)(1) of this

section.

(4) A determination under paragraph (1) may not be made for a

class of purchases or contracts.

An executive agency may use procedures other than competitive

procedures only when -

(1) the property or services needed by the executive agency are

available from only one responsible source and no other type of

property or services will satisfy the needs of the executive

agency;

(2) the executive agency's need for the property or services is

of such an unusual and compelling urgency that the Government

would be seriously injured unless the executive agency is

permitted to limit the number of sources from which it solicits

bids or proposals;

(3) it is necessary to award the contract to a particular

source or sources in order (A) to maintain a facility, producer,

manufacturer, or other supplier available for furnishing property

or services in case of a national emergency or to achieve

industrial mobilization, (B) to establish or maintain an

essential engineering, research, or development capability to be

provided by an educational or other nonprofit institution or a

federally funded research and development center, or (C) to

procure the services of an expert for use, in any litigation or

dispute (including any reasonably foreseeable litigation or

dispute) involving the Federal Government, in any trial, hearing,

or proceeding before any court, administrative tribunal, or

agency, or to procure the services of an expert or neutral for

use in any part of an alternative dispute resolution or

negotiated rulemaking process, whether or not the expert is

expected to testify;

(4) the terms of an international agreement or treaty between

the United States Government and a foreign government or

international organization, or the written directions of a

foreign government reimbursing the executive agency for the cost

of the procurement of the property or services for such

government, have the effect of requiring the use of procedures

other than competitive procedures;

(5) subject to subsection (h) (!1) of this section, a statute

expressly authorizes or requires that the procurement be made

through another executive agency or from a specified source, or

the agency's need is for a brand-name commercial item for

authorized resale;

(6) the disclosure of the executive agency's needs would

compromise the national security unless the agency is permitted

to limit the number of sources from which it solicits bids or

proposals; or

(7) the head of the executive agency -

(A) determines that it is necessary in the public interest to

use procedures other than competitive procedures in the

particular procurement concerned, and

(B) notifies the Congress in writing of such determination

not less than 30 days before the award of the contract.

(d) Property or services deemed available from only one source;

nondelegable authority

(1) For the purposes of applying subsection (c)(1) of this

section -

(A) in the case of a contract for property or services to be

awarded on the basis of acceptance of an unsolicited research

proposal, the property or services shall be considered to be

available from only one source if the source has submitted an

unsolicited research proposal that demonstrates a unique and

innovative concept the substance of which is not otherwise

available to the United States and does not resemble the

substance of a pending competitive procurement; and

(B) in the case of a follow-on contract for the continued

development or production of a major system or highly specialized

equipment when it is likely that award to a source other than the

original source would result in (i) substantial duplication of

cost to the Government which is not expected to be recovered

through competition, or (ii) unacceptable delays in fulfilling

the executive agency's needs, such property may be deemed to be

available only from the original source and may be procured

through procedures other than competitive procedures.

(2) The authority of the head of an executive agency under

subsection (c)(7) of this section may not be delegated.

(e) Offer requests to potential sources

An executive agency using procedures other than competitive

procedures to procure property or services by reason of the

application of subsection (c)(2) or (c)(6) of this section shall

request offers from as many potential sources as is practicable

under the circumstances.

(f) Justification for use of noncompetitive procedures

(1) Except as provided in paragraph (2), an executive agency may

not award a contract using procedures other than competitive

procedures unless -

(A) the contracting officer for the contract justifies the use

of such procedures in writing and certifies the accuracy and

completeness of the justification;

(B) the justification is approved -

(i) in the case of a contract for an amount exceeding

$500,000 (but equal to or less than $10,000,000), by the

competition advocate for the procuring activity (without

further delegation) or by an official referred to in clause

(ii) or (iii); and

(ii) in the case of a contract for an amount exceeding

$10,000,000 (but equal to or less than $50,000,000), by the

head of the procuring activity or a delegate who, if a member

of the armed forces, is a general or flag officer or, if a

civilian, is serving in a position in grade GS-16 or above

under the General Schedule (or in a comparable or higher

position under another schedule); or

(iii) in the case of a contract for an amount exceeding

$50,000,000, by the senior procurement executive of the agency

designated pursuant to section 414(3) of this title (without

further delegation); and

contract pursuant to section 416 of this title and all bids or

proposals received in response to such notice have been

considered by such executive agency.

(2) In the case of a procurement permitted by subsection (c)(2),

the justification and approval required by paragraph (1) may be

made after the contract is awarded. The justification and approval

required by paragraph (1) is not required -

(A) when a statute expressly requires that the procurement be

made from a specified source;

(B) when the agency's need is for a brand-name commercial item

for authorized resale;

of this section; or

(D) in the case of a procurement conducted under (i) the

Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.), or (ii) section

637(a) of title 15.

(3) The justification required by paragraph (1)(A) shall include

(A) a description of the agency's needs;

(B) an identification of the statutory exception from the

requirement to use competitive procedures and a demonstration,

based on the proposed contractor's qualifications or the nature

of the procurement, of the reasons for using that exception;

reasonable;

(D) a description of the market survey conducted or a statement

of the reasons a market survey was not conducted;

(E) a listing of the sources, if any, that expressed in writing

an interest in the procurement; and

(F) a statement of the actions, if any, the agency may take to

remove or overcome a barrier to competition before a subsequent

procurement for such needs.

(4) The justification required by paragraph (1)(A) and any

related information shall be made available for inspection by the

public consistent with the provisions of section 552 of title 5.

(5) In no case may an executive agency -

(A) enter into a contract for property or services using

procedures other than competitive procedures on the basis of the

lack of advance planning or concerns related to the amount of

funds available to the agency for procurement functions; or

(B) procure property or services from another executive agency

unless such other executive agency complies fully with the

requirements of this subchapter in its procurement of such

property or services.

The restriction set out in clause (B) is in addition to, and not in

lieu of, any other restriction provided by law.

(g) Simplified procedures for small purchases

(1) In order to promote efficiency and economy in contracting and

to avoid unnecessary burdens for agencies and contractors, the

Federal Acquisition Regulation shall provide for -

(A) special simplified procedures for purchases of property and

services for amounts not greater than the simplified acquisition

threshold; and

(B) special simplified procedures for purchases of property and

services for amounts greater than the simplified acquisition

threshold but not greater than $5,000,000 with respect to which

the contracting officer reasonably expects, based on the nature

of the property or services sought and on market research, that

offers will include only commercial items.

(2)(A) The Administrator of General Services shall prescribe

regulations that provide special simplified procedures for

acquisitions of leasehold interests in real property at rental

rates that do not exceed the simplified acquisition threshold.

(B) For purposes of subparagraph (A), the rental rate or rates

under a multiyear lease do not exceed the simplified acquisition

threshold if the average annual amount of the rent payable for the

period of the lease does not exceed the simplified acquisition

threshold.

(3) A proposed purchase or contract for an amount above the

simplified acquisition threshold may not be divided into several

purchases or contracts for lesser amounts in order to use the

simplified procedures required by paragraph (1).

(4) In using the simplified procedures, an executive agency shall

promote competition to the maximum extent practicable.

(5) An executive agency shall comply with the Federal Acquisition

Regulation provisions referred to in section 427(f) of this title.

(h) Efficient implementation of requirement

The Federal Acquisition Regulation shall ensure that the

requirement to obtain full and open competition is implemented in a

manner that is consistent with the need to efficiently fulfill the

Government's requirements.

(i) Merit-based award of contracts

(1) It is the policy of Congress that an executive agency should

not be required by legislation to award a new contract to a

specific non-Federal Government entity. It is further the policy of

Congress that any program, project, or technology identified in

legislation be procured through merit-based selection procedures.

(2) A provision of law may not be construed as requiring a new

contract to be awarded to a specified non-Federal Government entity

unless that provision of law -

(A) specifically refers to this subsection;

(B) specifically identifies the particular non-Federal

Government entity involved; and

required by such provision of law in contravention of the policy

set forth in paragraph (1).

(3) For purposes of this subsection, a contract is a new contract

unless the work provided for in the contract is a continuation of

the work performed by the specified entity under a preceding

contract.

(4) This subsection shall not apply with respect to any contract

that calls upon the National Academy of Sciences to investigate,

examine, or experiment upon any subject of science or art of

significance to an executive agency and to report on such matters

to the Congress or any agency of the Federal Government.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303, 63 Stat. 395; July

12, 1952, ch. 703, Sec. 1(m), 66 Stat. 594; Pub. L. 90-268, Sec. 2,

Mar. 16, 1968, 82 Stat. 49; Pub. L. 98-369, div. B, title VII, Sec.

2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 98-577, title V,

Sec. 504(a)(1), (2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99-145,

title IX, Sec. 961(a)(2), title XIII, Sec. 1304(c)(2), (3), Nov. 8,

1985, 99 Stat. 703, 742; Pub. L. 101-510, div. A, title VIII, Sec.

806(c), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103-355, title I,

Secs. 1051-1053, 1055(a), title IV, Sec. 4402(a), title VII, Sec.

7203(b)(1), Oct. 13, 1994, 108 Stat. 3260, 3261, 3265, 3348, 3380;

Pub. L. 104-106, div. D, title XLI, Secs. 4101(b), 4102(b), title

XLII, Sec. 4202(b)(1), title XLIII, Sec. 4321(e)(2), Feb. 10, 1996,

110 Stat. 642, 643, 653, 674; Pub. L. 104-320, Secs. 7(a)(2),

11(c)(2), Oct. 19, 1996, 110 Stat. 3871, 3873; Pub. L. 105-85, div.

A, title VIII, Sec. 850(f)(4)(B), Nov. 18, 1997, 111 Stat. 1850.)

-REFTEXT-

REFERENCES IN TEXT

Subsection (h) of this section, referred to in subsec. (c)(5),

was redesignated subsec. (i) and a new subsec. (h) was added by

Pub. L. 104-106, div. D, title XLI, Sec. 4101(b), Feb. 10, 1996,

110 Stat. 642.

The Javits-Wagner-O'Day Act, referred to in subsec. (f)(2)(D), is

act June 25, 1938, ch. 697, 52 Stat. 1196, as amended, which is

classified to sections 46 to 48c of this title. For complete

classification of this Act to the Code, see Tables.

-MISC1-

AMENDMENTS

1997 - Subsec. (g)(5). Pub. L. 105-85 substituted "section

427(f)" for "section 427(g)".

1996 - Subsec. (c)(3)(C). Pub. L. 104-320 substituted "agency, or

to procure the services of an expert or neutral for use" for

"agency, or" and inserted "or negotiated rulemaking" after

"alternative dispute resolution".

Subsec. (f)(1)(B)(i). Pub. L. 104-106, Sec. 4102(b)(1),

substituted "$500,000 (but equal to or less than $10,000,000)" for

"$100,000 (but equal to or less than $1,000,000)" and "(ii) or

(iii); and" for "(ii), (iii), or (iv);".

Subsec. (f)(1)(B)(ii). Pub. L. 104-106, Sec. 4102(b)(2),

substituted "$10,000,000 (but equal to or less than $50,000,000)"

for "$1,000,000 (but equal to or less than $10,000,000)" and

"civilian," for "civilian;".

Subsec. (f)(1)(B)(iii). Pub. L. 104-106, Sec. 4102(b)(3),

substituted "$50,000,000" for "$10,000,000".

Subsec. (f)(2)(D). Pub. L. 104-106, Sec. 4321(e)(2), substituted

"the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.)," for "the Act

of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as

the Wagner-O'Day Act,".

Subsec. (g)(1). Pub. L. 104-106, Sec. 4202(b)(1)(A), substituted

"shall provided for - " for "shall provide for special simplified

procedures for purchases of property and services for amounts not

greater than the simplified acquisition threshold." and added

subpars. (A) and (B).

Subsec. (g)(5). Pub. L. 104-106, Sec. 4202(b)(1)(B), added par.

(5).

Subsecs. (h), (i). Pub. L. 104-106, Sec. 4101(b), added subsec.

(h) and redesignated former subsec. (h) as (i).

1994 - Subsec. (a)(1)(A). Pub. L. 103-355, Sec. 1051(1),

substituted "Federal Acquisition Regulation" for "modifications to

regulations promulgated pursuant to section 2752 of the Competition

in Contracting Act of 1984".

Subsec. (b)(1)(D) to (F). Pub. L. 103-355, Sec. 1052(a), added

subpars. (D) to (F).

Subsec. (b)(4). Pub. L. 103-355, Sec. 1052(b), added par. (4).

Subsec. (c)(3). Pub. L. 103-355, Sec. 1055(a), struck out "or"

before "(B)" and inserted ", or" and cl. (C) before period at end.

Subsec. (c)(5). Pub. L. 103-355, Sec. 7203(b)(1)(A), inserted

"subject to subsection (h) of this section," before "a statute".

Subsec. (f)(1)(B)(i). Pub. L. 103-355, Sec. 1053, inserted before

semicolon at end "or by an official referred to in clause (ii),

(iii), or (iv)".

Subsec. (g)(1). Pub. L. 103-355, Sec. 4402(a)(1)(A), substituted

"purchases of property and services for amounts not greater than

the simplified acquisition threshold" for "small purchases of

property and services".

Pub. L. 103-355, Secs. 1051(2), 4402(a)(1)(B), amended par. (1)

identically, substituting "Federal Acquisition Regulation" for

"regulations modified, in accordance with section 2752 of the

Competition in Contracting Act of 1984,".

Subsec. (g)(2). Pub. L. 103-355, Sec. 4402(a)(2), added par. (2)

and struck out former par. (2) which read as follows: "For the

purposes of this subchapter, a small purchase is a purchase or

contract for an amount which does not exceed the small purchase

threshold."

Subsec. (g)(3). Pub. L. 103-355, Sec. 4402(a)(3), substituted

"simplified acquisition threshold" for "small purchase threshold"

and "simplified procedures" for "small purchase procedures".

Subsec. (g)(4). Pub. L. 103-355, Sec. 4402(a)(4), substituted

"the simplified procedures" for "small purchase procedures".

Subsec. (g)(5). Pub. L. 103-355, Sec. 4402(a)(5), struck out par.

(5) which read as follows: "In this subsection, the term 'small

purchase threshold' has the meaning given such term in section

403(11) of this title."

Subsec. (h). Pub. L. 103-355, Sec. 7203(b)(1)(B), added subsec.

(h).

1990 - Subsec. (g)(2), (3). Pub. L. 101-510, Sec. 806(c)(1), (2),

substituted "the small purchase threshold" for "$25,000".

Subsec. (g)(5). Pub. L. 101-510, Sec. 806(c)(3), added par. (5).

1985 - Subsec. (f)(1)(C). Pub. L. 99-145, Sec. 1304(c)(2),

substituted "any" for "Any".

Subsec. (f)(2). Pub. L. 99-145, Sec. 961(a)(2), added subpars.

(A) and (B), designated existing provision as subpar. (C), and

redesignated as subpar. (D), cls. (i) and (ii) provisions

previously designated subpars. (A) and (B), substituting in cl.

(ii) "section 637(a) of title 15" for "the authority of section

637(a) of title 15".

Subsec.(g)(1). Pub. L. 99-145, Sec. 1304(c)(3), inserted a comma

after "1984".

1984 - Subsec. (a). Pub. L. 98-369 substituted provisions

requiring procurement through full and open competition for

provisions requiring advertisement for bids to be made a sufficient

time prior to the purchase or contract and to permit full and free

competition, and struck out provision that no advertisement or bid

invitation for carriage of Government property in other than

Government-owned cargo containers could specify carriage in cargo

containers of any stated length, height, or width.

Subsec. (b). Pub. L. 98-369 substituted provisions regarding the

exclusion of a particular source of property or services from

competitive procedures for provisions regarding the opening of bids

and procedures for awards, and inserted provision that in

fulfilling the statutory requirements relating to small business

concerns and socially and economically disadvantaged small business

concerns, an executive agency shall use competitive procedures but

may restrict a solicitation to allow only such business concerns to

compete.

Subsec. (b)(2). Pub. L. 98-577, Sec. 504(a)(1), substituted

provisions to the effect that executive agencies may provide for

procurement of property or services covered by this section using

competitive procedures but excluding other than small business

concerns for former provisions which provided that executive

agencies shall use competitive procedures but may restrict a

solicitation to allow only such small business concerns to compete.

Subsec. (b)(3). Pub. L. 98-577, Sec. 504(a)(1), added par. (3).

Subsecs. (c) to (g). Pub. L. 98-369 added subsecs. (c) to (g).

Subsec. (f)(2). Pub. L. 98-577, Sec. 504(a)(2), designated the

final sentence as subpar. (A) and added subpar. (B).

1968 - Subsec. (a). Pub. L. 90-268 inserted provision that no

advertisement or invitation to bid for carriage of Government

property in other than Government-owned cargo containers shall

specify carriage of such property in cargo containers of any stated

length, height, or width.

1952 - Subsec. (a). Act July 12, 1952, substituted "property" for

"supplies".

EFFECTIVE DATE OF 1997 AMENDMENT

Amendment by Pub. L. 105-85 effective 180 days after Nov. 18,

1997, see section 850(g) of Pub. L. 105-85, set out as a note under

section 2302c of Title 10, Armed Forces.

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1985 AMENDMENT

Amendment by section 961(a)(2) of Pub. L. 99-145 effective as if

included in enactment of Competition in Contracting Act of 1984,

Pub. L. 98-369, div. B, title VII, see section 961(e) of Pub. L.

99-145, set out as a note under section 2304 of Title 10, Armed

Forces.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-369 applicable with respect to any

solicitation for bids or proposals issued after Mar. 31, 1985, see

section 2751 of Pub. L. 98-369, set out as a note under section 251

of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

TERMINATION OF AUTHORITY TO ISSUE SOLICITATIONS FOR PURCHASES OF

COMMERCIAL ITEMS IN EXCESS OF SIMPLIFIED ACQUISITION THRESHOLD

Authority to issue solicitations for purchases of commercial

items in excess of simplified acquisition threshold pursuant to

special simplified procedures authorized by subsec. (g)(1) of this

section to expire three years after date certain amendments by

section 4202 of Pub. L. 104-106 take effect pursuant to section

4401(b) of Pub. L. 104-106, set out as a note under section 251 of

this title, see section 4202(e) of Pub. L. 104-106, set out as a

note under section 2304 of Title 10, Armed Forces.

REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES

References in laws to the rates of pay for GS-16, 17, or 18, or

to maximum rates of pay under the General Schedule, to be

considered references to rates payable under specified sections of

Title 5, Government Organization and Employees, see section 529

[title I, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note

under section 5376 of Title 5.

SMALL BUSINESS ACT

Section 2711(c) of Pub. L. 98-369 provided that: "The amendments

made by this section [amending this section and section 259 of this

title and enacting sections 253a and 253b of this title] do not

supersede or affect the provisions of section 8(a) of the Small

Business Act (15 U.S.C. 637(a))."

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 252, 253h, 253i, 253j,

257, 416, 417, 427 of this title; title 6 sections 189, 393, 425,

426; title 15 section 637; title 20 section 1018a; title 22 section

2669; title 29 section 2887; title 38 section 8153; title 40

section 3310; title 49 section 40110; title 50 App. section 2077.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

41 USC Sec. 253a 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253a. Planning and solicitation requirements

-STATUTE-

(a) Preparation; planning; specifications in solicitation

(1) In preparing for the procurement of property or services, an

executive agency shall -

(A) specify its needs and solicit bids or proposals in a manner

designed to achieve full and open competition for the

procurement;

(B) use advance procurement planning and market research; and

obtain full and open competition with due regard to the nature of

the property or services to be acquired.

(2) Each solicitation under this subchapter shall include

specifications which -

(A) consistent with the provisions of this subchapter, permit

full and open competition;

(B) include restrictive provisions or conditions only to the

extent necessary to satisfy the needs of the executive agency or

as authorized by law.

(3) For the purposes of paragraphs (1) and (2), the type of

specification included in a solicitation shall depend on the nature

of the needs of the executive agency and the market available to

satisfy such needs. Subject to such needs, specifications may be

stated in terms of -

(A) function, so that a variety of products or services may

qualify;

(B) performance, including specifications of the range of

acceptable characteristics or of the minimum acceptable

standards; or

(b) Contents of solicitation

In addition to the specifications described in subsection (a) of

this section, each solicitation for sealed bids or competitive

proposals (other than for a procurement for commercial items using

special simplified procedures or a purchase for an amount not

greater than the simplified acquisition threshold) shall at a

minimum include -

(1) a statement of -

(A) all significant factors and significant subfactors which

the executive agency reasonably expects to consider in

evaluating sealed bids (including price) or competitive

proposals (including cost or price, cost-related or

price-related factors and subfactors, and noncost-related or

nonprice-related factors and subfactors); and

(B) the relative importance assigned to each of those factors

and subfactors; and

(2)(A) in the case of sealed bids -

(i) a statement that sealed bids will be evaluated without

discussions with the bidders; and

(ii) the time and place for the opening of the sealed bids;

(B) in the case of competitive proposals -

(i) either a statement that the proposals are intended to be

evaluated with, and award made after, discussions with the

offerors, or a statement that the proposals are intended to be

evaluated, and award made, without discussions with the

offerors (other than discussions conducted for the purpose of

minor clarification) unless discussions are determined to be

necessary; and

(ii) the time and place for submission of proposals.

(1) In prescribing the evaluation factors to be included in each

solicitation for competitive proposals, an executive agency -

(A) shall clearly establish the relative importance assigned to

the evaluation factors and subfactors, including the quality of

the product or services to be provided (including technical

capability, management capability, prior experience, and past

performance of the offeror);

(B) shall include cost or price to the Federal Government as an

evaluation factor that must be considered in the evaluation of

proposals; and

other than cost or price, when combined, are -

(i) significantly more important than cost or price;

(ii) approximately equal in importance to cost or price; or

(iii) significantly less important than cost or price.

(2) The regulations implementing subparagraph (C) of paragraph

(1) may not define the terms "significantly more important" and

"significantly less important" as specific numeric weights that

would be applied uniformly to all solicitations or a class of

solicitations.

(d) Additional information in solicitation

Nothing in this section prohibits an executive agency from -

(1) providing additional information in a solicitation,

including numeric weights for all evaluation factors and

subfactors on a case-by-case basis; or

(2) stating in a solicitation that award will be made to the

offeror that meets the solicitation's mandatory requirements at

the lowest cost or price.

(e) Evaluation of purchase options

An executive agency, in issuing a solicitation for a contract to

be awarded using sealed bid procedures, may not include in such

solicitation a clause providing for the evaluation of prices for

options to purchase additional property or services under the

contract unless the executive agency has determined that there is a

reasonable likelihood that the options will be exercised.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303A, as added Pub. L.

98-369, div. B, title VII, Sec. 2711(a)(2), July 18, 1984, 98 Stat.

1178; amended Pub. L. 103-355, title I, Secs. 1061(a), (b), 1062,

title IV, Sec. 4402(b), Oct. 13, 1994, 108 Stat. 3266, 3267, 3348;

Pub. L. 104-106, div. D, title XLII, Sec. 4202(b)(2), Feb. 10,

1996, 110 Stat. 653.)

-MISC1-

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-106 inserted "a procurement for

commercial items using special simplified procedures or" after

"(other than for" in introductory provisions.

1994 - Subsec. (b). Pub. L. 103-355, Sec. 4402(b), substituted "a

purchase for an amount not greater than the simplified acquisition

threshold)" for "small purchases)" in introductory provisions.

Subsec. (b)(1)(A). Pub. L. 103-355, Sec. 1061(a)(1)(A), amended

subpar. (A) generally. Prior to amendment, subpar. (A) read as

follows: "all significant factors (including price) which the

executive agency reasonably expects to consider in evaluating

sealed bids or competitive proposals; and".

Subsec. (b)(1)(B). Pub. L. 103-355, Sec. 1061(a)(1)(B),

substituted "factors and subfactors" for "factors".

Subsec. (b)(2)(B)(i). Pub. L. 103-355, Sec. 1061(a)(2), amended

cl. (i) generally. Prior to amendment, cl. (i) read as follows: "a

statement that the proposals are intended to be evaluated with, and

awards made after, discussions with the offerors, but might be

evaluated and awarded without discussions with the offerors; and".

Subsecs. (c), (d). Pub. L. 103-355, Sec. 1061(b), added subsecs.

Subsec. (e). Pub. L. 103-355, Sec. 1062, added subsec. (e).

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE

Section applicable with respect to any solicitation for bids or

proposals issued after Mar. 31, 1985, see section 2751 of Pub. L.

98-369, set out as an Effective Date of 1984 Amendment note under

section 251 of this title.

SMALL BUSINESS ACT

Section not to affect or supersede the provisions of section

637(a) of Title 15, Commerce and Trade, see section 2711(c) of Pub.

L. 98-369, set out as a note under section 253 of this title.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253b, 253m, 257 of this

title; title 20 section 1018a.

-End-

-CITE-

41 USC Sec. 253b 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253b. Evaluation and award

-STATUTE-

(a) Basis

An executive agency shall evaluate sealed bids and competitive

proposals, and award a contract, based solely on the factors

specified in the solicitation.

(b) Rejection of bids or proposals

All sealed bids or competitive proposals received in response to

a solicitation may be rejected if the agency head determines that

such action is in the public interest.

Sealed bids shall be opened publicly at the time and place stated

in the solicitation. The executive agency shall evaluate the bids

in accordance with subsection (a) of this section without

discussions with the bidders and, except as provided in subsection

(b) of this section, shall award a contract with reasonable

promptness to the responsible source whose bid conforms to the

solicitation and is most advantageous to the United States,

considering only price and the other price-related factors included

in the solicitation. 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.

(d) Discussions with offerors; written notification

(1) An executive agency shall evaluate competitive proposals in

accordance with subsection (a) of this section and may award a

contract -

(A) 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

(B) 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

253a(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.

(2) If the contracting officer determines that the number of

offerors that would otherwise be included in the competitive range

under paragraph (1)(A) 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 such criteria.

(3) Except as otherwise provided in subsection (b) of this

section, the executive agency shall award a contract with

reasonable promptness to the responsible source whose proposal is

most advantageous to the United States, considering only cost or

price and the other factors included in the solicitation. The

executive agency shall award the contract by transmitting, in

writing or by electronic means, notice of the award to such 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.

(e) Post-award debriefings

(1) When a contract is awarded by the head of an executive agency

on the basis of competitive proposals, an unsuccessful offeror,

upon written request received by the agency within 3 days after the

date on which the unsuccessful offeror receives the notification of

the contract award, shall be debriefed and furnished the basis for

the selection decision and contract award. The executive agency

shall debrief the offeror within, to the maximum extent

practicable, 5 days after receipt of the request by the executive

agency.

(2) The debriefing shall include, at a minimum -

(A) the executive agency's evaluation of the significant weak

or deficient factors in the offeror's offer;

(B) the overall evaluated cost and technical rating of the

offer of the contractor awarded the contract and the overall

evaluated cost and technical rating of the offer of the debriefed

offeror;

(D) a summary of the rationale for the award;

(E) in the case of a proposal that includes a commercial item

that is an end item under the contract, the make and model of the

item being provided in accordance with the offer of the

contractor awarded the contract; and

(F) 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.

(3) The debriefing may not include point-by-point comparisons of

the debriefed offeror's offer with other offers and may not

disclose any information that is exempt from disclosure under

section 552(b) of title 5.

(4) Each solicitation for competitive proposals shall include a

statement that information described in paragraph (2) may be

disclosed in post-award debriefings.

(5) If, within one year after the date of the contract award and

as a result of a successful procurement protest, the executive

agency seeks to fulfill the requirement under the protested

contract either on the basis of a new solicitation of offers or on

the basis of new best and final offers requested for that contract,

the head of such executive agency shall make available to all

offerors -

(A) the information provided in debriefings under this

subsection regarding the offer of the contractor awarded the

contract; and

(B) the same information that would have been provided to the

original offerors.

(f) Preaward debriefings

(1) When the contracting officer excludes an offeror submitting a

competitive proposal from the competitive range (or otherwise

excludes such an 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. 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

Government to conduct a debriefing at that time.

(2) The contracting officer is required to debrief an excluded

offeror in accordance with subsection (e) of this section only if

that offeror requested and was refused a preaward debriefing under

paragraph (1) of this subsection.

(3) The debriefing conducted under this subsection shall include

(A) the executive agency's evaluation of the significant

elements in the offeror's offer;

(B) a summary of the rationale for the offeror's exclusion; and

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.

(4) The debriefing conducted pursuant to this subsection 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.

(g) Summary of debriefing

The contracting officer shall include a summary of any debriefing

conducted under subsection (e) or (f) of this section in the

contract file.

(h) 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.

(i) Antitrust violations

If the agency head considers that a bid or proposal evidences a

violation of the antitrust laws, such agency head shall refer the

bid or proposal to the Attorney General for appropriate action.

(j) Planning for future competition

(1)(A) In preparing a solicitation for the award of a development

contract for a major system, the head of an agency shall consider

requiring in the solicitation that an offeror include in its offer

proposals described in subparagraph (B). In determining whether to

require such proposals, the head of the agency shall give due

consideration to the purposes for which the system is being

procured and the technology necessary to meet the system's required

capabilities. If such proposals are required, the head of the

agency shall consider them in evaluating the offeror's price.

(B) The proposals that the head of an agency is to consider

requiring in a solicitation for the award of a development contract

are the following:

(i) Proposals to incorporate in the design of the major system

items which are currently available within the supply system of

the Federal agency responsible for the major system, available

elsewhere in the national supply system, or commercially

available from more than one source.

(ii) With respect to items that are likely to be required in

substantial quantities during the system's service life,

proposals to incorporate in the design of the major system items

which the United States will be able to acquire competitively in

the future.

(2)(A) In preparing a solicitation for the award of a production

contract for a major system, the head of an agency shall consider

requiring in the solicitation that an offeror include in its offer

proposals described in subparagraph (B). In determining whether to

require such proposals, the head of the agency shall give due

consideration to the purposes for which the system is being

procured and the technology necessary to meet the system's required

capabilities. If such proposals are required, the head of the

agency shall consider them in evaluating the offeror's price.

(B) The proposals that the head of an agency is to consider

requiring in a solicitation for the award of a production contract

are proposals identifying opportunities to ensure that the United

States will be able to obtain on a competitive basis items procured

in connection with the system that are likely to be reprocured in

substantial quantities during the service life of the system.

Proposals submitted in response to such requirement may include the

following:

(i) Proposals to provide to the United States the right to use

technical data to be provided under the contract for competitive

reprocurement of the item, together with the cost to the United

States, if any, of acquiring such technical data and the right to

use such data.

(ii) Proposals for the qualification or development of multiple

sources of supply for the item.

(3) If the head of an agency is making a noncompetitive award of

a development contract or a production contract for a major system,

the factors specified in paragraphs (1) and (2) to be considered in

evaluating an offer for a contract may be considered as objectives

in negotiating the contract to be awarded.

(k) Protest file

(1) 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 so 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) 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.

(l) 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 such

executive agency -

(1) may take any action set out in subparagraphs (A) through

(F) of subsection (b)(1) of section 3554 of title 31; and

(2) may pay costs described in paragraph (1) of section 3554(c)

of such title within the limits referred to in paragraph (2) of

such section.

(m) Prohibition on release of contractor proposals

(1) Except as provided in paragraph (2), a proposal in the

possession or control of an executive agency may not be made

available to any person under section 552 of title 5.

(2) Paragraph (1) does not apply to any proposal that is set

forth or incorporated by reference in a contract entered into

between the agency and the contractor that submitted the proposal.

(3) In this subsection, the term "proposal" means any proposal,

including a technical, management, or cost proposal, submitted by a

contractor in response to the requirements of a solicitation for a

competitive proposal.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303B, as added Pub. L.

98-369, div. B, title VII, Sec. 2711(a)(2), July 18, 1984, 98 Stat.

1179; amended Pub. L. 98-577, title II, Sec. 201(a), Oct. 30, 1984,

98 Stat. 3068; Pub. L. 103-355, title I, Secs. 1061(c), 1063-1066,

Oct. 13, 1994, 108 Stat. 3267-3269; Pub. L. 104-106, div. D, title

XLI, Secs. 4103(b), 4104(b), div. E, title LVI, Sec. 5607(c), Feb.

10, 1996, 110 Stat. 644, 645, 701; Pub. L. 104-201, div. A, title

VIII, Sec. 821(b), title X, Sec. 1074(b)(7), Sept. 23, 1996, 110

Stat. 2609, 2660.)

-REFTEXT-

REFERENCES IN TEXT

The antitrust laws, referred to in subsec. (i), are classified

generally to section 1 et seq. of Title 15, Commerce and Trade.

-MISC1-

AMENDMENTS

1996 - Subsec. (d)(2), (3). Pub. L. 104-106, Sec. 4103(b), added

par. (2) and redesignated former par. (2) as (3).

Subsec. (e)(6). Pub. L. 104-106, Sec. 4104(b)(1), struck out par.

(6) which read as follows: "The contracting officer shall include a

summary of the debriefing in the contract file."

Subsecs. (f) to (h). Pub. L. 104-106, Sec. 4104(b)(3), added

subsecs. (f) to (h). Former subsecs. (f) to (h) redesignated (i) to

(k), respectively.

Subsecs. (i), (j). Pub. L. 104-106, Sec. 4104(b)(2), redesignated

subsecs. (f) and (g) as (i) and (j), respectively. Former subsec.

(i) redesignated (l).

Subsec. (k). Pub. L. 104-106, Sec. 5607(c), as amended by Pub. L.

104-201, Sec. 1074(b)(7), struck out par. (3) which read as

follows: "Regulations implementing this subsection shall be

consistent with the regulations regarding the preparation and

submission of an agency's protest file (the so-called 'rule 4

file') for protests to the General Services Board of Contract

Appeals under section 759 of title 40."

Pub. L. 104-106, Sec. 4104(b)(2), redesignated subsec. (h) as

(k).

Subsec. (l). Pub. L. 104-106, Sec. 4104(b)(2), redesignated

subsec. (i) as (l).

Subsec. (m). Pub. L. 104-201, Sec. 821(b), added subsec. (m).

1994 - Subsec. (a). Pub. L. 103-355, Sec. 1061(c)(1), inserted ",

and award a contract," after "competitive proposals".

Subsec. (c). Pub. L. 103-355, Secs. 1061(c)(2), 1063(a), inserted

"in accordance with subsection (a) of this section" after "shall

evaluate the bids" in second sentence, substituted "transmitting,

in writing or by electronic means, notice" for "transmitting

written notice" in third sentence, and inserted at end "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."

Subsec. (d)(1). Pub. L. 103-355, Sec. 1061(c)(3)(A), added par.

(1) and struck out former par. (1) which read as follows: "The

executive agency shall evaluate competitive proposals and may award

a contract -

"(A) after discussions conducted with the offerors at any time

after receipt of the proposals and before the award of the

contract; or

"(B) without discussions with the offerors (other than

discussions conducted for the purpose of minor clarification)

when it can be clearly demonstrated from the existence of full

and open competition or accurate prior cost experience with the

product or service that acceptance of an initial proposal without

discussions would result in the lowest overall cost to the

Government."

Subsec. (d)(2). Pub. L. 103-355, Secs. 1061(c)(3)(C), 1063(b),

inserted "cost or" before "price" in first sentence, and, in second

sentence, substituted "transmitting, in writing or by electronic

means, notice" for "transmitting written notice" and ", within 3

days after the date of contract award, shall notify, in writing or

by electronic means," for "shall promptly notify".

Pub. L. 103-355, Sec. 1061(c)(3)(B), redesignated par. (4) as (2)

and struck out former par. (2) which read as follows: "In the case

of award of a contract under paragraph (1)(A), the executive agency

shall conduct, before such award, written or oral discussions with

all responsible sources who submit proposals within the competitive

range, considering only price and the other factors included in the

solicitation."

Subsec. (d)(3). Pub. L. 103-355, Sec. 1061(c)(3)(B), struck out

par. (3) which read as follows: "In the case of award of a contract

under paragraph (1)(B), the executive agency shall award the

contract based on the proposals as received (and as clarified, if

necessary, in discussions conducted for the purpose of minor

clarification)."

Subsec. (d)(4). Pub. L. 103-355, Sec. 1061(c)(3)(B), redesignated

par. (4) as (2).

Subsecs. (e) to (g). Pub. L. 103-355, Sec. 1064, added subsec.

(e) and redesignated former subsecs. (e) and (f) as (f) and (g),

respectively.

Subsec. (h). Pub. L. 103-355, Sec. 1065, added subsec. (h).

Subsec. (i). Pub. L. 103-355, Sec. 1066, added subsec. (i).

1984 - Subsec. (f). Pub. L. 98-577 added subsec. (f).

EFFECTIVE DATE OF 1996 AMENDMENTS

Section 1074(b)(7) of Pub. L. 104-201 provided that the amendment

made by that section is effective Feb. 10, 1996.

For effective date and applicability of amendment by sections

4103(b) and 4104(b) of Pub. L. 104-106, see section 4401 of Pub. L.

104-106, set out as a note under section 251 of this title.

Amendment by section 5607(c) of Pub. L. 104-106 effective 180

days after Feb. 10, 1996, see section 5701 of Pub. L. 104-106, Feb.

10, 1996, 110 Stat. 702.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Section 201(b) of Pub. L. 98-577 provided that: "The amendment

made by subsection (a) [amending this section] shall apply with

respect to any solicitation issued more than 180 days after the

date of enactment of this Act [Oct. 30, 1984]."

EFFECTIVE DATE

Section applicable with respect to any solicitation for bids or

proposals issued after Mar. 31, 1985, see section 2751 of Pub. L.

98-369, set out as an Effective Date of 1984 Amendment note under

section 251 of this title.

SMALL BUSINESS ACT

Section not to affect or supersede the provisions of section

637(a) of Title 15, Commerce and Trade, see section 2711(c) of Pub.

L. 98-369, set out as a note under section 253 of this title.

-EXEC-

EX. ORD. NO. 12979. AGENCY PROCUREMENT PROTESTS

Ex. Ord. No. 12979, Oct. 25, 1995, 60 F.R. 55171, provided:

By the authority vested in me as President by the Constitution

and the laws of the United States of America, and in order to

ensure effective and efficient expenditure of public funds and fair

and expeditious resolution of protests to the award of Federal

procurement contracts, it is hereby ordered as follows:

Section 1. Heads of executive departments and agencies

("agencies") engaged in the procurement of supplies and services

shall prescribe administrative procedures for the resolution of

protests to the award of their procurement contracts as an

alternative to protests in fora outside the procuring agencies.

Procedures prescribed pursuant to this order shall:

(a) emphasize that whenever conduct of a procurement is

contested, all parties should use their best efforts to resolve the

matter with agency contracting officers;

(b) to the maximum extent practicable, provide for inexpensive,

informal, procedurally simple, and expeditious resolution of

protests, including, where appropriate and as permitted by law, the

use of alternative dispute resolution techniques, third party

neutrals, and another agency's personnel;

economic interests would be affected by the award or failure to

award the contract to request a review, at a level above the

contracting officer, of any decision by a contracting officer that

is alleged to have violated a statute or regulation and, thereby,

caused prejudice to the protester; and

(d) except where immediate contract award or performance is

justified for urgent and compelling reasons or is determined to be

in the best interest of the United States, prohibit award or

performance of the contract while a timely filed protest is pending

before the agency. To allow for the withholding of a contract award

or performance, the agency must have received notice of the protest

within either 10 calendar days after the contract award or 5

calendar days after the bidder or offeror who is protesting the

contract award was given the opportunity to be debriefed by the

agency, whichever date is later.

Sec. 2. The Administrator for Federal Procurement Policy shall:

(a) work with the heads of executive agencies to provide policy

guidance and leadership necessary to implement provisions of this

order; and

(b) review and evaluate agency experience and performance under

this order, and report on any findings to the President within 2

years from the date of this order.

Sec. 3. The Administrator of General Services, the Secretary of

Defense, and the Administrator of the National Aeronautics and

Space Administration, in coordination with the Office of Federal

Procurement Policy, shall amend the Federal Acquisition Regulation,

48 C.F.R. 1, within 180 days of the date of this order to further

the purposes of this order.

William J. Clinton.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253m, 257, 431 of this

title; title 20 section 1018a.

-End-

-CITE-

41 USC Sec. 253c 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253c. Encouragement of new competition

-STATUTE-

(a) "Qualification requirement" defined

In this section, "qualification requirement" means a requirement

for testing or other quality assurance demonstration that must be

completed by an offeror before award of a contract.

(b) Agency head; functions; prior to enforcement of qualification

requirement

Except as provided in subsection (c) of this section, the head of

the agency shall, before enforcing any qualification requirement -

(1) prepare a written justification stating the necessity for

establishing the qualification requirement and specify why the

qualification requirement must be demonstrated before contract

award;

(2) specify in writing and make available to a potential

offeror upon request all requirements which a prospective

offeror, or its product, must satisfy in order to become

qualified, such requirements to be limited to those least

restrictive to meet the purposes necessitating the establishment

of the qualification requirement;

(3) specify an estimate of the costs of testing and evaluation

likely to be incurred by a potential offeror in order to become

qualified;

(4) ensure that a potential offeror is provided, upon request,

a prompt opportunity to demonstrate at its own expense (except as

provided in subsection (d) of this section) its ability to meet

the standards specified for qualification using qualified

personnel and facilities of the agency concerned or of another

agency obtained through interagency agreement, or under contract,

or other methods approved by the agency (including use of

approved testing and evaluation services not provided under

contract to the agency);

(5) if testing and evaluation services are provided under

contract to the agency for the purposes of clause (4), provide to

the extent possible that such services be provided by a

contractor who is not expected to benefit from an absence of

additional qualified sources and who shall be required in such

contract to adhere to any restriction on technical data asserted

by the potential offeror seeking qualification; and

(6) ensure that a potential offeror seeking qualification is

promptly informed as to whether qualification is attained and, in

the event qualification is not attained, is promptly furnished

specific information why qualification was not attained.

(1) Subsection (b) of this section does not apply with respect to

a qualification requirement established by statute prior to October

30, 1984.

(2) Except as provided in paragraph (3), if it is unreasonable to

specify the standards for qualification which a prospective offeror

or its product must satisfy, a determination to that effect shall

be submitted to the advocate for competition of the procuring

activity responsible for the purchase of the item subject to the

qualification requirement. After considering any comments of the

advocate for competition reviewing such determination, the head of

the procuring activity may waive the requirements of paragraphs (2)

through (5) of subsection (b) of this section for up to two years

with respect to the item subject to the qualification requirement.

(3) The waiver authority contained in paragraph (2) shall not

apply with respect to any qualified products list.

(4) A potential offeror may not be denied the opportunity to

submit and have considered an offer for a contract solely because

the potential offeror has not been identified as meeting a

qualification requirement, if the potential offeror can demonstrate

to the satisfaction of the contracting officer that the potential

offeror or its product meets the standards established for

qualification or can meet such standards before the date specified

for award of the contract.

(5) Nothing contained in this subsection requires the referral of

an offer to the Small Business Administration pursuant to section

637(b)(7) of title 15 if the basis for the referral is a challenge

by the offeror to either the validity of the qualification

requirement or the offeror's compliance with such requirement.

(6) The head of an agency need not delay a proposed procurement

in order to comply with subsection (b) of this section or in order

to provide a potential offeror with an opportunity to demonstrate

its ability to meet the standards specified for qualification.

(d) Number; qualified sources or products; fewer than two actual

manufacturers; functions of agency head

(1) If the number of qualified sources or qualified products

available to compete actively for an anticipated future requirement

is fewer than two actual manufacturers or the products of two

actual manufacturers, respectively, the head of the agency

concerned shall -

(A) periodically publish notice in the Commerce Business Daily

soliciting additional sources or products to seek qualification,

unless the contracting officer determines that such publication

would compromise national security; and

(B) bear the cost of conducting the specified testing and

evaluation (excluding the costs associated with producing the

item or establishing the production, quality control, or other

system to be tested and evaluated) for a small business concern

or a product manufactured by a small business concern which has

met the standards specified for qualification and which could

reasonably be expected to compete for a contract for that

requirement, but such costs may be borne only if the head of the

agency determines that such additional qualified sources or

products are likely to result in cost savings from increased

competition for future requirements sufficient to offset (within

a reasonable period of time considering the duration and dollar

value of anticipated future requirements) the costs incurred by

the agency.

(2) The head of an agency shall require a prospective contractor

requesting the United States to bear testing and evaluation costs

under paragraph (1)(B) to certify as to its status as a small

business concern under section 632 of title 15.

(e) Examination; need for qualification requirement

Within seven years after the establishment of a qualification

requirement, the need for such qualification requirement shall be

examined and the standards of such requirement revalidated in

accordance with the requirements of subsection (b) of this section.

The preceding sentence does not apply in the case of a

qualification requirement for which a waiver is in effect under

subsection (c)(2) of this section.

(f) Enforcement determination by agency head

Except in an emergency as determined by the head of the agency,

whenever the head of the agency determines not to enforce a

qualification requirement for a solicitation, the agency may not

thereafter enforce that qualification requirement unless the agency

complies with the requirements of subsection (b) of this section.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303C, formerly Sec. 303D,

as added Pub. L. 98-577, title II, Sec. 202(a), Oct. 30, 1984, 98

Stat. 3069; renumbered Sec. 303C, Pub. L. 99-145, title XIII, Sec.

1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742.)

-MISC1-

EFFECTIVE DATE

Section 202(b) of Pub. L. 98-577 provided that: "The amendment

made by subsection (a) [enacting this section] shall apply with

respect to solicitations issued more than 180 days after the date

of enactment of this Act [Oct. 30, 1984]."

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-End-

-CITE-

41 USC Sec. 253d 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253d. Validation of proprietary data restrictions

-STATUTE-

(a) Contracts; delivery of technical services; contents

A contract for property or services entered into by an executive

agency which provides for the delivery of technical data, shall

provide that -

(1) a contractor or subcontractor at any tier shall be prepared

to furnish to the contracting officer a written justification for

any restriction asserted by the contractor or subcontractor on

the right of the United States to use such technical data; and

(2) the contracting officer may review the validity of any

restriction asserted by the contractor or by a subcontractor

under the contract on the right of the United States to use

technical data furnished to the United States under the contract

if the contracting officer determines that reasonable grounds

exist to question the current validity of the asserted

restriction and that the continued adherence to the asserted

restriction by the United States would make it impracticable to

procure the item competitively at a later time.

(b) Review; challenge; notice

If after such review the contracting officer determines that a

challenge to the asserted restriction is warranted, the contracting

officer shall provide written notice to the contractor or

subcontractor asserting the restriction. Such notice shall state -

(1) the grounds for challenging the asserted restriction; and

(2) the requirement for a response within 60 days justifying

the current validity of the asserted restriction.

If a contractor or subcontractor asserting a restriction subject

to this section submits to the contracting officer a written

request, showing the need for additional time to comply with the

requirement to justify the current validity of the asserted

restriction, additional time to adequately permit the submission of

such justification shall be provided by the contracting officer as

appropriate. If a party asserting a restriction receives notices of

challenges to restrictions on technical data from more than one

contracting officer, and notifies each contracting officer of the

existence of more than one challenge, the contracting officer

initiating the first in time challenge, after consultation with the

party asserting the restriction and the other contracting officers,

shall formulate a schedule of responses to each of the challenges

that will afford the party asserting the restriction with an

equitable opportunity to respond to each such challenge.

(d) Decision; validity of asserted restriction; failure to submit

response

(1) Upon a failure by the contractor or subcontractor to submit

any response under subsection (b) of this section, the contracting

officer shall issue a decision pertaining to the validity of the

asserted restriction.

(2) If a justification is submitted in response to the notice

provided pursuant to subsection (b) of this section, a contracting

officer shall within 60 days of receipt of any justification

submitted, issue a decision or notify the party asserting the

restriction of the time within which a decision will be issued.

(e) Claim; considered claim within Contract Disputes Act of 1978

If a claim pertaining to the validity of the asserted restriction

is submitted in writing to a contracting officer by a contractor or

subcontractor at any tier, such claim shall be considered a claim

within the meaning of the Contract Disputes Act of 1978 (41 U.S.C.

601 et seq.).

(f) Challenge; use of technical data; sustained; liability of

United States for costs and fees

(1) If, upon final disposition, the contracting officer's

challenge to the restriction on the right of the United States to

use such technical data is sustained -

(A) the restriction on the right of the United States to use

the technical data shall be cancelled; and

(B) if the asserted restriction is found not to be

substantially justified, the contractor or subcontractor, as

appropriate, shall be liable to the United States for payment of

the cost to the United States of reviewing the asserted

restriction and the fees and other expenses (as defined in

section 2412(d)(2)(A) of title 28) incurred by the United States

in challenging the asserted restriction, unless special

circumstances would make such payment unjust.

(2) If, upon final disposition, the contracting officer's

challenge to the restriction on the right of the United States to

use such technical data is not sustained -

(A) the United States shall continue to be bound by the

restriction; and

(B) the United States shall be liable for payment to the party

asserting the restriction for fees and other expenses (as defined

in section 2412(d)(2)(A) of title 28) incurred by the party

asserting the restriction in defending the asserted restriction

if the challenge by the United States is found not to be made in

good faith.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303D, formerly Sec. 303E,

as added Pub. L. 98-577, title II, Sec. 203(a), Oct. 30, 1984, 98

Stat. 3071; renumbered Sec. 303D, Pub. L. 99-145, title XIII, Sec.

1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742.)

-REFTEXT-

REFERENCES IN TEXT

The Contract Disputes Act of 1978, referred to in subsec. (e), is

Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is

classified principally to chapter 9 (Sec. 601 et seq.) of this

title. For complete classification of this Act to the Code, see

Short Title note set out under section 601 of this title and

Tables.

-MISC1-

EFFECTIVE DATE

Section 203(b) of Pub. L. 98-577 provided that: "The amendment

made by subsection (a) [enacting this section] shall apply with

respect to solicitations issued more than 60 days after the date of

the enactment of this Act [Oct. 30, 1984]."

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-End-

-CITE-

41 USC Sec. 253e 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253e. Repealed. Pub. L. 103-355, title I, Sec. 1252, Oct. 13,

1994, 108 Stat. 3284

-MISC1-

Section, act June 30, 1949, ch. 288, title III, Sec. 303E,

formerly Sec. 303F, as added Oct. 30, 1984, Pub. L. 98-577, title

II, Sec. 204(a), 98 Stat. 3072; renumbered Sec. 303E, Nov. 8, 1985,

Pub. L. 99-145, title XIII, Sec. 1304(c)(4)(A), 99 Stat. 742,

related to commercial pricing for supplies.

EFFECTIVE DATE OF REPEAL

For effective date and applicability of repeal, see section 10001

of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment

note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 253f 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253f. Economic order quantities

-STATUTE-

(a) Procurement of supplies; costs advantageous to United States

Each executive agency shall procure supplies in such quantity as

(A) will result in the total cost and unit cost most advantageous

to the United States, where practicable, and (B) does not exceed

the quantity reasonably expected to be required by the agency.

(b) Opinions; economic advantage to United States

Each solicitation for a contract for supplies shall, if

practicable, include a provision inviting each offeror responding

to the solicitation to state an opinion on whether the quantity of

the supplies proposed to be procured is economically advantageous

to the United States and, if applicable, to recommend a quantity or

quantities which would be more economically advantageous to the

United States. Each such recommendation shall include a quotation

of the total price and the unit price for supplies procured in each

recommended quantity.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303F, formerly Sec. 303G,

as added Pub. L. 98-577, title II, Sec. 205(a), Oct. 30, 1984, 98

Stat. 3073; renumbered Sec. 303F, Pub. L. 99-145, title XIII, Sec.

1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742.)

-MISC1-

EFFECTIVE DATE

Section 205(b) of Pub. L. 98-577 provided that: "The amendment

made by subsection (a) [enacting this section] shall take effect at

the end of the 180-day period beginning on the date of the

enactment of this Act [Oct. 30, 1984]."

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-End-

-CITE-

41 USC Sec. 253g 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253g. Prohibition of contractors limiting subcontractor sales

directly to United States

-STATUTE-

(a) Contract restrictions

Each contract for the purchase of property or services made by an

executive agency shall provide that the contractor will not -

(1) enter into any agreement with a subcontractor under the

contract that has the effect of unreasonably restricting sales by

the subcontractor directly to the United States of any item or

process (including computer software) made or furnished by the

subcontractor under the contract (or any follow-on production

contract); or

(2) otherwise act to restrict unreasonably the ability of a

subcontractor to make sales to the United States described in

clause (1).

(b) Rights under law

This section does not prohibit a contractor from asserting rights

it otherwise has under law.

This section does not apply to a contract for an amount that is

not greater than the simplified acquisition threshold.

(d) Inapplicability when Government treated similarly to other

purchasers

An agreement between the contractor in a contract for the

acquisition of commercial items and a subcontractor under such

contract that restricts sales by such subcontractor directly to

persons other than the contractor may not be considered to

unreasonably restrict sales by that subcontractor to the United

States in violation of the provision included in such contract

pursuant to subsection (a) of this section if the agreement does

not result in the Federal Government being treated differently with

regard to the restriction than any other prospective purchaser of

such commercial items from that subcontractor.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303G, formerly Sec. 303H,

as added Pub. L. 98-577, title II, Sec. 206(a), Oct. 30, 1984, 98

Stat. 3073; renumbered Sec. 303G, Pub. L. 99-145, title XIII, Sec.

1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742; amended Pub. L. 103-355,

title IV, Sec. 4103(b), title VIII, Sec. 8204(a), Oct. 13, 1994,

108 Stat. 3341, 3396.)

-MISC1-

AMENDMENTS

1994 - Subsec. (c). Pub. L. 103-355, Sec. 4103(b), added subsec.

(c).

Subsec. (d). Pub. L. 103-355, Sec. 8204(a), added subsec. (d).

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE

Section 206(b) of Pub. L. 98-577 provided that: "The amendment

made by subsection (a) [enacting this section] shall apply with

respect to solicitations made more than 180 days after the date of

enactment of this Act [Oct. 30, 1984]."

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-End-

-CITE-

41 USC Sec. 253h 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253h. Task and delivery order contracts: general authority

-STATUTE-

(a) Authority to award

Subject to the requirements of this section, section 253j of this

title, and other applicable law, the head of an executive agency

may enter into a task or delivery order contract (as defined in

section 253k of this title) for procurement of services or

property.

(b) Solicitation

The solicitation for a task or delivery order contract shall

include the following:

(1) The period of the contract, including the number of options

to extend the contract and the period for which the contract may

be extended under each option, if any.

(2) The maximum quantity or dollar value of the services or

property to be procured under the contract.

(3) A statement of work, specifications, or other description

that reasonably describes the general scope, nature, complexity,

and purposes of the services or property to be procured under the

contract.

procedures

The head of an executive agency may use procedures other than

competitive procedures to enter into a task or delivery order

contract under this section only if an exception in subsection (c)

of section 253 of this title applies to the contract and the use of

such procedures is approved in accordance with subsection (f) of

such section.

(d) Single and multiple contract awards

(1) The head of an executive agency may exercise the authority

provided in this section -

(A) to award a single task or delivery order contract; or

(B) if the solicitation states that the head of the executive

agency has the option to do so, to award separate task or

delivery order contracts for the same or similar services or

property to two or more sources.

(2) No determination under section 253(b) of this title is

required for an award of multiple task or delivery order contracts

under paragraph (1)(B).

(3) The regulations implementing this subsection shall -

(A) establish a preference for awarding, to the maximum extent

practicable, multiple task or delivery order contracts for the

same or similar services or property under the authority of

paragraph (1)(B); and

(B) establish criteria for determining when award of multiple

task or delivery order contracts would not be in the best

interest of the Federal Government.

(e) Contract modifications

A task or delivery order may not increase the scope, period, or

maximum value of the task or delivery order contract under which

the order is issued. The scope, period, or maximum value of the

contract may be increased only by modification of the contract.

(f) Inapplicability to contracts for advisory and assistance

services

Except as otherwise specifically provided in section 253i of this

title, this section does not apply to a task or delivery order

contract for the acquisition of advisory and assistance services

(as defined in section 1105(g) of title 31).

(g) Relationship to other contracting authority

Nothing in this section may be construed to limit or expand any

authority of the head of an executive agency or the Administrator

of General Services to enter into schedule, multiple award, or task

or delivery order contracts under any other provision of law.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303H, as added Pub. L.

103-355, title I, Sec. 1054(a), Oct. 13, 1994, 108 Stat. 3261.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

CONSTRUCTION

Section 1054(b) of Pub. L. 103-355 provided that: "Nothing in

section 303H, 303I, 303J, or 303K of the Federal Property and

Administrative Services Act of 1949 [41 U.S.C. 253h, 253i, 253j,

253k], as added by subsection (a), shall be construed as modifying

or superseding, or as intended to impair or restrict, authorities

or responsibilities under -

"(1) the Brooks Automatic Data Processing Act (section 111 of

the Federal Property and Administrative Services Act of 1949

([former] 40 U.S.C. 759)); and

"(2) the Brooks Architect-Engineers Act (title IX of the

Federal Property and Administrative Services Act of 1949 (40

U.S.C. 541 et seq.) [now 40 U.S.C. 1101-1104])."

GUIDANCE ON USE OF TASK ORDER AND DELIVERY ORDER CONTRACTS

Pub. L. 106-65, div. A, title VIII, Sec. 804, Oct. 5, 1999, 113

Stat. 704, provided that:

"(a) Guidance in the Federal Acquisition Regulation. - Not later

than 180 days after the date of the enactment of this Act [Oct. 5,

1999], the Federal Acquisition Regulation issued in accordance with

sections 6 and 25 of the Office of Federal Procurement Policy Act

(41 U.S.C. 405 and 421) shall be revised to provide guidance to

agencies on the appropriate use of task order and delivery order

contracts in accordance with sections 2304a through 2304d of title

10, United States Code, and sections 303H through 303K of the

Federal Property and Administrative Services Act of 1949 (41 U.S.C.

253h through 253k).

"(b) Content of Guidance. - The regulations issued pursuant to

subsection (a) shall, at a minimum, provide the following:

"(1) Specific guidance on the appropriate use of governmentwide

and other multiagency contracts entered into in accordance with

the provisions of law referred to in that subsection.

"(2) Specific guidance on steps that agencies should take in

entering into and administering multiple award task order and

delivery order contracts to ensure compliance with -

"(A) the requirement in section 5122 of the Clinger-Cohen Act

(40 U.S.C. 1422) [now 40 U.S.C. 11312] for capital planning and

investment control in purchases of information technology

products and services;

"(B) the requirement in section 2304c(b) of title 10, United

States Code, and section 303J(b) of the Federal Property and

Administrative Services Act of 1949 (41 U.S.C. 253j(b)) to

ensure that all contractors are afforded a fair opportunity to

be considered for the award of task orders and delivery orders;

and

"(C) the requirement in section 2304c(c) of title 10, United

States Code, and section 303J(c) of the Federal Property and

Administrative Services Act of 1949 (41 U.S.C. 253j(c)) for a

statement of work in each task order or delivery order issued

that clearly specifies all tasks to be performed or property to

be delivered under the order.

"(c) GSA 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 309(b)(3) of the Federal Property and

Administrative Services Act of 1949 (41 U.S.C. 259(b)(3)) that is

administered as the Federal Supply Schedules program. The

assessment shall include examination of the following:

"(1) The administration of the program by the Administrator of

General Services.

"(2) The ordering and program practices followed by Federal

customer agencies in using schedules established under the

program.

"(d) GAO Report. - Not later than one year after the date on

which the regulations required by subsection (a) are published in

the Federal Register, the Comptroller General shall submit to

Congress an evaluation of -

"(1) executive agency compliance with the regulations; and

"(2) conformance of the regulations with existing law, together

with any recommendations that the Comptroller General considers

appropriate."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253i, 253j, 253k of this

title.

-End-

-CITE-

41 USC Sec. 253i 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253i. Task order contracts: advisory and assistance services

-STATUTE-

(a) Authority to award

(1) Subject to the requirements of this section, section 253j of

this title, and other applicable law, the head of an executive

agency may enter into a task order contract (as defined in section

253k of this title) for procurement of advisory and assistance

services.

(2) The head of an executive agency may enter into a task order

contract for advisory and assistance services only under the

authority of this section.

(b) Limitation on contract period

The period of a task order contract entered into under this

section, including all periods of extensions of the contract under

options, modifications, or otherwise, may not exceed five years

unless a longer period is specifically authorized in a law that is

applicable to such contract.

The notice required by section 416 of this title and section

637(e) of title 15 shall reasonably and fairly describe the general

scope, magnitude, and duration of the proposed task order contract

in a manner that would reasonably enable a potential offeror to

decide whether to request the solicitation and consider submitting

an offer.

(d) Required content of solicitation and contract

(1) The solicitation shall include the information (regarding

services) described in section 253h(b) of this title.

(2) A task order contract entered into under this section shall

contain the same information that is required by paragraph (1) to

be included in the solicitation of offers for that contract.

(e) Multiple awards

(1) The head of an executive agency may, on the basis of one

solicitation, award separate task order contracts under this

section for the same or similar services to two or more sources if

the solicitation states that the head of the executive agency has

the option to do so.

(2) If, in the case of a task order contract for advisory and

assistance services to be entered into under the authority of this

section, the contract period is to exceed three years and the

contract amount is estimated to exceed $10,000,000 (including all

options), the solicitation shall -

(A) provide for a multiple award authorized under paragraph

(1); and

(B) include a statement that the head of the executive agency

may also elect to award only one task order contract if the head

of the executive agency determines in writing that only one of

the offerers is capable of providing the services required at the

level of quality required.

(3) Paragraph (2) does not apply in the case of a solicitation

for which the head of the executive agency concerned determines in

writing that, because the services required under the contract are

unique or highly specialized, it is not practicable to award more

than one contract.

(f) Contract modifications

(1) A task order may not increase the scope, period, or maximum

value of the task order contract under which the order is issued.

The scope, period, or maximum value of the contract may be

increased only by modification of the contract.

(2) Unless use of procedures other than competitive procedures is

authorized by an exception in subsection (c) of section 253 of this

title and approved in accordance with subsection (f) of such

section, competitive procedures shall be used for making such a

modification.

(3) Notice regarding the modification shall be provided in

accordance with section 416 of this title and section 637(e) of

title 15.

(g) Contract extensions

(1) Notwithstanding the limitation on the contract period set

forth in subsection (b) of this section or in a solicitation or

contract pursuant to subsection (e) of this section, a contract

entered into by the head of an executive agency under this section

may be extended on a sole-source basis for a period not exceeding

six months if the head of such executive agency determines that -

(A) the award of a follow-on contract has been delayed by

circumstances that were not reasonably foreseeable at the time

the initial contract was entered into; and

(B) the extension is necessary in order to ensure continuity of

the receipt of services pending the award of, and commencement of

performance under, the follow-on contract.

(2) A task order contract may be extended under the authority of

paragraph (1) only once and only in accordance with the limitations

and requirements of this subsection.

(h) Inapplicability to certain contracts

This section does not apply to a contract for the acquisition of

property or services that includes acquisition of advisory and

assistance services if the head of the executive agency entering

into such contract determines that, under the contract, advisory

and assistance services are necessarily incident to, and not a

significant component of, the contract.

(i) "Advisory and assistance services" defined

In this section, the term "advisory and assistance services" has

the meaning given such term in section 1105(g) of title 31.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303I, as added Pub. L.

103-355, title I, Sec. 1054(a), Oct. 13, 1994, 108 Stat. 3262.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

CONSTRUCTION

Section not to be construed as modifying or superseding, or as

intended to impair or restrict, authorities or responsibilities

under former 40 U.S.C. 759 or subchapter VI (Sec. 541 et seq.) of

chapter 10 of former title 40 [now 40 U.S.C. 1101-1104], see

section 1054(b) of Pub. L. 103-355, set out as a note under section

253h of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253h, 253j, 253k of this

title.

-End-

-CITE-

41 USC Sec. 253j 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253j. Task and delivery order contracts: orders

-STATUTE-

(a) Issuance of orders

The following actions are not required for issuance of a task or

delivery order under a task or delivery order contract:

(1) A separate notice for such order under section 416 of this

title or section 637(e) of title 15.

(2) Except as provided in subsection (b) of this section, a

competition (or a waiver of competition approved in accordance

with section 253(f) of this title) that is separate from that

used for entering into the contract.

(b) Multiple award contracts

When multiple contracts are awarded under section 253h(d)(1)(B)

or 253i(e) of this title, all contractors awarded such contracts

shall be provided a fair opportunity to be considered, pursuant to

procedures set forth in the contracts, for each task or delivery

order in excess of $2,500 that is to be issued under any of the

contracts unless -

(1) the executive agency's need for the services or property

ordered is of such unusual urgency that providing such

opportunity to all such contractors would result in unacceptable

delays in fulfilling that need;

(2) only one such contractor is capable of providing the

services or property required at the level of quality required

because the services or property ordered are unique or highly

specialized;

(3) the task or delivery order should be issued on a

sole-source basis in the interest of economy and efficiency

because it is a logical follow-on to a task or delivery order

already issued on a competitive basis; or

(4) it is necessary to place the order with a particular

contractor in order to satisfy a minimum guarantee.

A task or delivery order shall include a statement of work that

clearly specifies all tasks to be performed or property to be

delivered under the order.

(d) Protests

A protest is not authorized in connection with the issuance or

proposed issuance of a task or delivery order except for a protest

on the ground that the order increases the scope, period, or

maximum value of the contract under which the order is issued.

(e) Task and delivery order ombudsman

The head of each executive agency who awards multiple task or

delivery order contracts pursuant to section 253h(d)(1)(B) or

253i(e) of this title shall appoint or designate a task and

delivery order ombudsman who shall be responsible for reviewing

complaints from the contractors on such contracts and ensuring that

all of the contractors are afforded a fair opportunity to be

considered for task or delivery orders when required under

subsection (b) of this section. The task and delivery order

ombudsman shall be a senior agency official who is independent of

the contracting officer for the contracts and may be the executive

agency's competition advocate.

(f) Applicability

This section applies to task and delivery order contracts entered

into under sections 253h and 253i of this title.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303J, as added Pub. L.

103-355, title I, Sec. 1054(a), Oct. 13, 1994, 108 Stat. 3264.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

CONSTRUCTION

Section not to be construed as modifying or superseding, or as

intended to impair or restrict, authorities or responsibilities

under former 40 U.S.C. 759 or subchapter VI (Sec. 541 et seq.) of

chapter 10 of former title 40 [now 40 U.S.C. 1101-1104], see

section 1054(b) of Pub. L. 103-355, set out as a note under section

253h of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253h, 253i, 253k of this

title; title 6 section 426.

-End-

-CITE-

41 USC Sec. 253k 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253k. Task and delivery order contracts: definitions

-STATUTE-

In sections 253h, 253i, and 253j of this title:

(1) The term "task order contract" means a contract for

services that does not procure or specify a firm quantity of

services (other than a minimum or maximum quantity) and that

provides for the issuance of orders for the performance of tasks

during the period of the contract.

(2) The term "delivery order contract" means a contract for

property that does not procure or specify a firm quantity of

property (other than a minimum or maximum quantity) and that

provides for the issuance of orders for the delivery of property

during the period of the contract.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303K, as added Pub. L.

103-355, title I, Sec. 1054(a), Oct. 13, 1994, 108 Stat. 3265.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

CONSTRUCTION

Section not to be construed as modifying or superseding, or as

intended to impair or restrict, authorities or responsibilities

under former 40 U.S.C. 759 or subchapter VI (Sec. 541 et seq.) of

chapter 10 of former title 40 [now 40 U.S.C. 1101-1104], see

section 1054(b) of Pub. L. 103-355, set out as a note under section

253h of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253h, 253i of this title.

-End-

-CITE-

41 USC Sec. 253l 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253l. Severable services contracts for periods crossing fiscal

years

-STATUTE-

(a) Authority

The head of an executive agency may enter into a contract for

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

subsection (a) of this section.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303L, as added Pub. L.

103-355, title I, Sec. 1073, Oct. 13, 1994, 108 Stat. 3271; amended

Pub. L. 104-106, div. D, title XLIII, Sec. 4321(a)(1), Feb. 10,

1996, 110 Stat. 671.)

-MISC1-

AMENDMENTS

1996 - Pub. L. 104-106 made technical correction to directory

language of Pub. L. 103-355, Sec. 1073, which enacted this section.

EFFECTIVE DATE OF 1996 AMENDMENT

Section 4321(a) of Pub. L. 104-106 provided that the amendment

made by that section is effective as of Oct. 13, 1994, and as if

included in Pub. L. 103-355.

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253l-1, 253l-2, 253l-3,

253l-4 of this title.

-End-

-CITE-

41 USC Sec. 253l-1 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253l-1. Contract authority of Comptroller General

-STATUTE-

The Comptroller General may use available funds, now and

hereafter, to enter into contracts for the acquisition of severable

services for a period that begins in one fiscal year and ends in

the next fiscal year and to enter in multiyear contracts for the

acquisition of property and nonaudit-related services, to the same

extent as executive agencies under the authority of sections 253l

and 254c, respectively, of this title.

-SOURCE-

(Pub. L. 105-18, title II, Sec. 7004, June 12, 1997, 111 Stat.

192.)

-COD-

CODIFICATION

Section was not enacted as part of title III of act June 30,

1949, ch. 288, 63 Stat. 393, which comprises this subchapter.

-End-

-CITE-

41 USC Sec. 253l-2 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253l-2. Contract authority of Library of Congress

-STATUTE-

The Library of Congress may use available funds, now and

hereafter, to enter into contracts for the lease or acquisition of

severable services for a period that begins in one fiscal year and

ends in the next fiscal year and to enter into multi-year contracts

for the acquisition of property and services pursuant to sections

253l and 254c of this title, respectively.

-SOURCE-

(Pub. L. 106-57, title II, Sec. 207, Sept. 29, 1999, 113 Stat.

423.)

-COD-

CODIFICATION

Section was not enacted as part of title III of act June 30,

1949, ch. 288, 63 Stat. 393, which comprises this subchapter.

-End-

-CITE-

41 USC Sec. 253l-3 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253l-3. Contract authority of Chief Administrative Officer of

the House of Representatives

-STATUTE-

During fiscal year 2001 and any succeeding fiscal year, the Chief

Administrative Officer of the House of Representatives may -

(1) enter into contracts for the acquisition of severable

services for a period that begins in 1 fiscal year and ends in

the next fiscal year to the same extent as the head of an

executive agency under the authority of section 253l of this

title; and

(2) enter into multiyear contracts for the acquisitions of

property and nonaudit-related services to the same extent as

executive agencies under the authority of section 254c of this

title.

-SOURCE-

(Pub. L. 106-554, Sec. 1(a)(2) [title I, Sec. 101], Dec. 21, 2000,

114 Stat. 2763, 2763A-100.)

-COD-

CODIFICATION

Section was not enacted as part of title III of act June 30,

1949, ch. 288, 63 Stat. 393, which comprises this subchapter.

-End-

-CITE-

41 USC Sec. 253l-4 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253l-4. Contract authority of Congressional Budget Office

-STATUTE-

Beginning on December 21, 2000, and hereafter, the Congressional

Budget Office may use available funds to enter into contracts for

the procurement of severable services for a period that begins in

one fiscal year and ends in the next fiscal year and may enter into

multi-year contracts for the acquisition of property and services,

to the same extent as executive agencies under the authority of

section (!1) 253l and 254c, respectively, of this title.

-SOURCE-

(Pub. L. 106-554, Sec. 1(a)(2) [title I, Sec. 110], Dec. 21, 2000,

114 Stat. 2763, 2763A-108.)

-COD-

CODIFICATION

Section was not enacted as part of title III of act June 30,

1949, ch. 288, 63 Stat. 393, which comprises this subchapter.

-FOOTNOTE-

(!1) So in original. Probably should be "sections".

-End-

-CITE-

41 USC Sec. 253m 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 253m. Design-build selection procedures

-STATUTE-

(a) Authorization

Unless the traditional acquisition approach of design-bid-build

established under sections 1101 to 1104 of title 40 is used or

another acquisition procedure authorized by law is used, the head

of an executive agency shall use the two-phase selection procedures

authorized in this section for entering into a contract for the

design and construction of a public building, facility, or work

when a determination is made under subsection (b) of this section

that the procedures are appropriate for use.

(b) Criteria for use

A contracting officer shall make a determination whether

two-phase selection procedures are appropriate for use for entering

into a contract for the design and construction of a public

building, facility, or work when the contracting officer

anticipates that three or more offers will be received for such

contract, design work must be performed before an offeror can

develop a price or cost proposal for such contract, the offeror

will incur a substantial amount of expense in preparing the offer,

and the contracting officer has considered information such as the

following:

(1) The extent to which the project requirements have been

adequately defined.

(2) The time constraints for delivery of the project.

(3) The capability and experience of potential contractors.

(4) The suitability of the project for use of the two-phase

selection procedures.

(5) The capability of the agency to manage the two-phase

selection process.

(6) Other criteria established by the agency.

Two-phase selection procedures consist of the following:

(1) The agency develops, either in-house or by contract, a

scope of work statement for inclusion in the solicitation that

defines the project and provides prospective offerors with

sufficient information regarding the Government's requirements

(which may include criteria and preliminary design, budget

parameters, and schedule or delivery requirements) to enable the

offerors to submit proposals which meet the Government's needs.

If the agency contracts for development of the scope of work

statement, the agency shall contract for architectural and

engineering services as defined by and in accordance with

sections 1101 to 1104 of title 40.

(2) The contracting officer solicits phase-one proposals that -

(A) include information on the offeror's -

(i) technical approach; and

(ii) technical qualifications; and

(B) do not include -

(i) detailed design information; or

(ii) cost or price information.

(3) The evaluation factors to be used in evaluating phase-one

proposals are stated in the solicitation and include specialized

experience and technical competence, capability to perform, past

performance of the offeror's team (including the

architect-engineer and construction members of the team) and

other appropriate factors, except that cost-related or

price-related evaluation factors are not permitted. Each

solicitation establishes the relative importance assigned to the

evaluation factors and subfactors that must be considered in the

evaluation of phase-one proposals. The agency evaluates phase-one

proposals on the basis of the phase-one evaluation factors set

forth in the solicitation.

(4) The contracting officer selects as the most highly

qualified the number of offerors specified in the solicitation to

provide the property or services under the contract and requests

the selected offerors to submit phase-two competitive proposals

that include technical proposals and cost or price information.

Each solicitation establishes with respect to phase two -

(A) the technical submission for the proposal, including

design concepts or proposed solutions to requirements addressed

within the scope of work (or both), and

(B) the evaluation factors and subfactors, including cost or

price, that must be considered in the evaluations of proposals

in accordance with subsections (b), (c), and (d) of section

253a of this title.

The contracting officer separately evaluates the submissions

described in subparagraphs (A) and (B).

(5) The agency awards the contract in accordance with section

253b of this title.

(d) Solicitation to state number of offerors to be selected for

phase-two requests for competitive proposals

A solicitation issued pursuant to the procedures described in

subsection (c) of this section shall state the maximum number of

offerors that are to be selected to submit competitive proposals

pursuant to subsection (c)(4) of this section. The maximum number

specified in the solicitation shall not exceed 5 unless the agency

determines with respect to an individual solicitation that a

specified number greater than 5 is in the Government's interest and

is consistent with the purposes and objectives of the two-phase

selection process.

(e) Requirement for guidance and regulations

The Federal Acquisition Regulation shall include guidance -

(1) regarding the factors that may be considered in determining

whether the two-phase contracting procedures authorized by

subsection (a) of this section are appropriate for use in

individual contracting situations;

(2) regarding the factors that may be used in selecting

contractors; and

(3) providing for a uniform approach to be used

Government-wide.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 303M, as added Pub. L.

104-106, div. D, title XLI, Sec. 4105(b)(1), Feb. 10, 1996, 110

Stat. 647.)

-COD-

CODIFICATION

"Sections 1101 to 1104 of title 40" substituted in subsec. (a)

for "the Brooks Architect-Engineers Act (title IX of this Act)" and

in subsec. (c)(1) for "the Brooks Architect-Engineers Act (40

U.S.C. 541 et seq.)" on authority of Pub. L. 107-217, Sec. 5(c),

Aug. 21, 2002, 116 Stat. 1303, the first section of which enacted

Title 40, Public Buildings, Property, and Works.

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section 4401

of Pub. L. 104-106, set out as an Effective Date of 1996 Amendment

note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 254 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 254. Contract requirements

-STATUTE-

(a) Contracts awarded using procedures other than sealed-bid

procedures

Except as provided in subsection (b) of this section, 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 Government. 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 such contract upon an agreement or

understanding for a commission, percentage, brokerage, or

contingent fee, excepting bona fide employees or bona fide

established commercial or selling agencies maintained by the

contractor for the purpose of securing business, for the breach or

violation of which warranty the Government shall have the right to

annul such contract without liability or in its discretion to

deduct from the contract price or consideration the full amount of

such commission, percentage, brokerage, or contingent fee. The

preceding sentence 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.

(b) Barred contracts; fee limitation; determination of use; advance

notification

The cost-plus-a-percentage-of-cost system of contracting shall

not be used, and in the case of a cost-plus-a-fixed-fee contract

the fee shall not exceed 10 percent of the estimated cost of the

contract, exclusive of the fee, as determined by the agency head at

the time of entering into such contract (except that a fee not in

excess of 15 percent of such estimated cost is authorized in any

such contract for experimental, developmental, or research work and

that a fee inclusive of the contractor's costs and not in excess of

6 percent of the estimated cost, exclusive of fees, as determined

by the agency head at the time of entering into the contract, of

the project to which such fee is applicable is authorized in

contracts for architectural or engineering services relating to any

public works or utility project). All cost and

cost-plus-a-fixed-fee contracts shall provide for advance

notification by the contractor to the procuring agency of any

subcontract thereunder 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; and a procuring

agency, through any authorized representative thereof, shall have

the right to inspect the plans and to audit the books and records

of any prime contractor or subcontractor engaged in the performance

of a cost or cost-plus-a-fixed-fee contract.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 304, 63 Stat. 395; Oct.

31, 1951, ch. 652, 65 Stat. 700; July 12, 1952, ch. 703, Sec. 1(m),

66 Stat. 594; Pub. L. 89-607, Sec. 2, Sept. 27, 1966, 80 Stat. 850;

Pub. L. 98-369, div. B, title VII, Secs. 2712, 2714(a)(2), (3),

July 18, 1984, 98 Stat. 1181, 1184; Pub. L. 103-355, title I, Secs.

1071, 1251(a)(1), title II, Sec. 2251(b), title IV, Secs. 4103(c),

4402(c), title VIII, Sec. 8204(b), title X, Sec. 10005(e), Oct. 13,

1994, 108 Stat. 3270, 3278, 3320, 3341, 3349, 3396, 3408.)

-MISC1-

AMENDMENTS

1994 - Subsec. (a). Pub. L. 103-355, Secs. 4103(c), 8204(b),

inserted at end "The preceding sentence 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."

Subsec. (b). Pub. L. 103-355, Secs. 4402(c), 10005(e),

substituted "percent" for "per centum" wherever appearing and

"either the simplified acquisition threshold" for "either $25,000"

in last sentence.

Pub. L. 103-355, Sec. 1071, struck out after first sentence

"Neither a cost nor a cost-plus-a-fixed-fee contract nor an

incentive-type contract shall be used unless the agency head

determines that such method of contracting is likely to be less

costly than other methods or that it is impractical to secure

property or services of the kind or quality required without the

use of a cost or cost-plus-a-fixed-fee contract or an

incentive-type contract."

Subsec. (c). Pub. L. 103-355, Sec. 2251(b), struck out subsec.

contractors, time limitations, exemptions, exceptional conditions,

and reports to Congress. See section 254d of this title.

Subsec. (d). Pub. L. 103-355, Sec. 1251(a)(1), struck out subsec.

(d) which related to submission of cost or pricing data by

contractors and subcontractors, certificate requirements,

adjustment of price, inspection of books, records, etc., necessity

of data, and exceptions. See section 254b of this title.

1984 - Pub. L. 98-369, Sec. 2714(a)(2), amended section catchline

generally.

Subsec. (a). Pub. L. 98-369, Sec. 2714(a)(3)(A), (B), substituted

"awarded after using procedures other than sealed-bid procedures"

for "negotiated pursuant to section 252(c) of this title" in first

and second sentences.

Subsec. (c). Pub. L. 98-369, Sec. 2714(a)(3)(C), substituted

"awarded after using procedures other than sealed-bid procedures"

for "negotiated without advertising pursuant to authority contained

in this Act" in first sentence.

Subsec. (d). Pub. L. 98-369, Sec. 2712, added subsec. (d).

1966 - Subsec. (c). Pub. L. 89-607 provided for exemption of

certain contracts with foreign contractors from the requirement for

an examination-of-records clause, such determination to be reported

to Congress.

1952 - Subsec. (b). Act July 12, 1952, substituted "property" for

"supplies".

1951 - Subsec. (c). Act Oct. 31, 1951, added subsec. (c).

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-369 applicable with respect to any

solicitation for bids or proposals issued after Mar. 31, 1985, see

section 2751 of Pub. L. 98-369, set out as a note under section 251

of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

EXEMPTION OF FUNCTIONS

Functions authorized by Foreign Assistance Act of 1961, as

amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30

F.R. 6635, set out as a note under section 2393 of Title 22,

Foreign Relations and Intercourse.

FOREIGN CONTRACTORS

Secretaries of Defense, Army, Navy, or Air Force, or their

designees, to determine, prior to exercising the authority provided

in the amendment of this section by Pub. L. 89-607 to exempt

certain contracts with foreign contractors from the requirement of

an examination-of-records clause, that all reasonable efforts have

been made to include such examination-of-records clause, as

required by par. (11) of Part I of Ex. Ord. No. 10789, and that

alternate sources of supply are not reasonably available, see par.

(11) of Part I of Ex. Ord. No. 10789, eff. Nov. 14, 1958, 23 F.R.

8897, as amended, set out as a note under section 1431 of Title 50,

War and National Defense.

-EXEC-

EXECUTIVE ORDER NO. 12800

Ex. Ord. No. 12800, Apr. 13, 1992, 57 F.R. 12985, 13413, which

required Federal contractors to post a notice that employees could

not be required to be members of a union in order to retain their

jobs, was revoked by Ex. Ord. No. 12836, Sec. 1, Feb. 1, 1993, 58

F.R. 7045, which was itself revoked as it relates to notification

of employee rights concerning payment of union dues or fees by Ex.

Ord. No. 13201, Sec. 11, Feb. 17, 2001, 66 F.R. 11221, and as it

relates to project agreements by Ex. Ord. No. 13202, Sec. 8, Feb.

17, 2001, 66 F.R. 11226.

EX. ORD. NO. 13201. NOTIFICATION OF EMPLOYEE RIGHTS CONCERNING

PAYMENT OF UNION DUES OR FEES

Ex. Ord. No. 13201, Feb. 17, 2001, 66 F.R. 11221, provided:

By the authority vested in me as President by the Constitution

and the laws of the United States of America, including the Federal

Property and Administrative Services Act, 40 U.S.C. 471 et seq.

[now chapters 1 to 11 of Title 40, Public Buildings, Property, and

Works, and title III of the Act of June 30, 1949 (41 U.S.C. 251 et

seq.)], and in order to ensure the economical and efficient

administration and completion of Government contracts, it is hereby

ordered that:

Section 1. (a) This order is designed to promote economy and

efficiency in Government procurement. When workers are better

informed of their rights, including their rights under the Federal

labor laws, their productivity is enhanced. The availability of

such a workforce from which the United States may draw facilitates

the efficient and economical completion of its procurement

contracts.

(b) The Secretary of Labor (Secretary) shall be responsible for

the administration and enforcement of this order. The Secretary

shall adopt such rules and regulations and issue such orders as are

deemed necessary and appropriate to achieve the purposes of this

order.

Sec. 2. (a) Except in contracts exempted in accordance with

section 3 of this order, all Government contracting departments and

agencies shall, to the extent consistent with law, include the

following provisions in every Government contract, other than

collective bargaining agreements as defined in 5 U.S.C. 7103(a)(8)

and purchases under the "Simplified Acquisition Threshold" as

defined in the Office of Federal Procurement Policy Act (41 U.S.C.

403).

"1. During the term of this contract, the contractor agrees to

post a notice, of such size and in such form as the Secretary of

Labor shall prescribe, in conspicuous places in and about its

plants and offices, including all places where notices to employees

are customarily posted. The notice shall include the following

information (except that the last sentence shall not be included in

notices posted in the plants or offices of carriers subject to the

Railway Labor Act, as amended (45 U.S.C. 151-188)):

"NOTICE TO EMPLOYEES

Under Federal law, employees cannot be required to join a union

or maintain membership in a union in order to retain their jobs.

Under certain conditions, the law permits a union and an employer

to enter into a union-security agreement requiring employees to pay

uniform periodic dues and initiation fees. However, employees who

are not union members can object to the use of their payments for

certain purposes and can only be required to pay their share of

union costs relating to collective bargaining, contract

administration, and grievance adjustment.

"If you do not want to pay that portion of dues or fees used to

support activities not related to collective bargaining, contract

administration, or grievance adjustment, you are entitled to an

appropriate reduction in your payment. If you believe that you have

been required to pay dues or fees used in part to support

activities not related to collective bargaining, contract

administration, or grievance adjustment, you may be entitled to a

refund and to an appropriate reduction in future payments.

"For further information concerning your rights, you may wish to

contact the National Labor Relations Board (NLRB) either at one of

its Regional offices or at the following address:

National Labor Relations Board

Division of Information

1099 14th Street, N.W.

Washington, D.C. 20570

"To locate the nearest NLRB office, see NLRB's website at

www.nlrb.gov."

"2. The contractor will comply with all provisions of Executive

Order 13201 of February 17, 2001, and related rules, regulations,

and orders of the Secretary of Labor.

"3. In the event that the contractor does not comply with any of

the requirements set forth in paragraphs (1) or (2) above, this

contract may be cancelled, terminated, or suspended in whole or in

part, and the contractor may be declared ineligible for further

Government contracts in accordance with procedures authorized in or

adopted pursuant to Executive Order 13201 of February 17, 2001.

Such other sanctions or remedies may be imposed as are provided in

Executive Order 13201 of February 17, 2001, or by rule, regulation,

or order of the Secretary of Labor, or as are otherwise provided by

law.

"4. The contractor will include the provisions of paragraphs (1)

through (3) herein in every subcontract or purchase order entered

into in connection with this contract unless exempted by rules,

regulations, or orders of the Secretary of Labor issued pursuant to

section 3 of Executive Order 13201 of February 17, 2001, so that

such provisions will be binding upon each subcontractor or vendor.

The contractor will take such action with respect to any such

subcontract or purchase order as may be directed by the Secretary

of Labor as a means of enforcing such provisions, including the

imposition of sanctions for non compliance: Provided, however, that

if the contractor becomes involved in litigation with a

subcontractor or vendor, or is threatened with such involvement, as

a result of such direction, the contractor may request the United

States to enter into such litigation to protect the interests of

the United States."

(b) Whenever, through Acts of Congress or through clarification

of existing law by the courts or otherwise, it appears that

contractual provisions other than, or in addition to, those set out

in subsection (a) of this section are needed to inform employees

fully and accurately of their rights with respect to union dues,

union-security agreements, or the like, the Secretary shall

promptly issue such rules, regulations, or orders as are needed to

cause the substitution or addition of appropriate contractual

provisions in Government contracts thereafter entered into.

Sec. 3. (a) The Secretary may, if the Secretary finds that

special circumstances require an exemption in order to serve the

national interest, exempt a contracting department or agency from

the requirements of any or all of the provisions of section 2 of

this order with respect to a particular contract, subcontract, or

purchase order.

(b) The Secretary may, by rule, regulation, or order, exempt from

the provisions of section 2 of this order certain classes of

contracts to the extent that they involve (i) work outside the

United States and do not involve the recruitment or employment of

workers within the United States; (ii) work in jurisdictions where

State law forbids enforcement of union-security agreements; (iii)

work at sites where the notice to employees described in section

2(a) of this order would be unnecessary because the employees are

not represented by a union; (iv) numbers of workers below

appropriate thresholds set by the Secretary; or (v) subcontracts

below an appropriate tier set by the Secretary.

the exemption of facilities of a contractor, subcontractor, or

vendor that are in all respects separate and distinct from

activities related to the performance of the contract: Provided,

that such exemption will not interfere with or impede the

effectuation of the purposes of this order: And provided further,

that in the absence of such an exemption all facilities shall be

covered by the provisions of this order.

Sec. 4. (a) The Secretary may investigate any Government

contractor, subcontractor, or vendor to determine whether the

contractual provisions required by section 2 of this order have

been violated. Such investigations shall be conducted in accordance

with procedures established by the Secretary.

(b) The Secretary shall receive and investigate complaints by

employees of a Government contractor, subcontractor, or vendor

where such complaints allege a failure to perform or a violation of

the contractual provisions required by section 2 of this order.

Sec. 5. (a) The Secretary, or any agency or officer in the

executive branch of the Government designated by rule, regulation,

or order of the Secretary, may hold such hearings, public or

private, regarding compliance with this order as the Secretary may

deem advisable.

(b) The Secretary may hold hearings, or cause hearings to be

held, in accordance with subsection (a) of this section prior to

imposing, ordering, or recommending the imposition of sanctions

under this order. Neither an order for debarment of any contractor

from further Government contracts under section 6(b) of this order

nor the inclusion of a contractor on a published list of

noncomplying contractors under section 6(c) of this order shall be

carried out without affording the contractor an opportunity for a

hearing.

Sec. 6. In accordance with such rules, regulations, or orders as

the Secretary may issue or adopt, the Secretary may:

(a) after consulting with the contracting department or agency,

direct that department or agency to cancel, terminate, suspend, or

cause to be cancelled, terminated, or suspended, any contract, or

any portion or portions thereof, for failure of the contractor to

comply with the contractual provisions required by section 2 of

this order; contracts may be cancelled, terminated, or suspended

absolutely, or continuance of contracts may be conditioned upon

future compliance: Provided, that before issuing a directive under

this subsection, the Secretary shall provide the head of the

contracting department or agency an opportunity to offer written

objections to the issuance of such a directive, which objections

shall include a complete statement of reasons for the objections,

among which reasons shall be a finding that completion of the

contract is essential to the agency's mission: And provided

further, that no directive shall be issued by the Secretary under

this subsection so long as the head of the contracting department

or agency continues personally to object to the issuance of such

directive;

(b) after consulting with each affected contracting department or

agency, provide that one or more contracting departments or

agencies shall refrain from entering into further contracts, or

extensions or other modifications of existing contracts, with any

noncomplying contractor, until such contractor has satisfied the

Secretary that such contractor has complied with and will carry out

the provisions of this order: Provided, that before issuing a

directive under this subsection, the Secretary shall provide the

head of each contracting department or agency an opportunity to

offer written objections to the issuance of such a directive, which

objections shall include a complete statement of reasons for the

objections, among which reasons shall be a finding that further

contracts or extensions or other modifications of existing

contracts with the noncomplying contractor are essential to the

agency's mission: And provided further, that no directive shall be

issued by the Secretary under this subsection so long as the head

of a contracting department or agency continues personally to

object to the issuance of such directive; and

that have, in the judgment of the Secretary, failed to comply with

the provisions of this order or of related rules, regulations, and

orders of the Secretary.

Sec. 7. Whenever the Secretary invokes section 6(a) or 6(b) of

this order, the contracting department or agency shall report the

results of the action it has taken to the Secretary within such

time as the Secretary shall specify.

Sec. 8. Each contracting department and agency shall cooperate

with the Secretary and provide such information and assistance as

the Secretary may require in the performance of the Secretary's

functions under this order.

Sec. 9. The Secretary may delegate any function or duty of the

Secretary under this order to any officer in the Department of

Labor or to any other officer in the executive branch of the

Government, with the consent of the head of the department or

agency in which that officer serves.

Sec. 10. The Federal Acquisition Regulatory Council (FAR Council)

shall take whatever action is required to implement in the Federal

Acquisition Regulation (FAR) the provisions of this order and of

any related rules, regulations, or orders of the Secretary that

were issued to implement this Executive Order. The FAR Council

shall amend the FAR to require each solicitation of offers for a

contract to include a provision that implements section 2 of this

order.

Sec. 11. As it relates to notification of employee rights

concerning payment of union dues or fees, Executive Order 12836 of

February 1, 1993, which, among other things, revoked Executive

Order 12800 of April 13, 1992, is revoked.

Sec. 12. The heads of executive departments and agencies shall

revoke expeditiously any orders, rules, regulations, guidelines, or

policies implementing or enforcing Executive Order 12836 of

February 1, 1993, as it relates to notification of employee rights

concerning payment of union dues or fees, to the extent consistent

with law.

Sec. 13. This order is intended only to improve the internal

management of the executive branch and is not intended to, nor does

it, create any right to administrative or judicial review, or any

right, whether substantive or procedural, enforceable by any party

against the United States, its agencies or instrumentalities, its

officers or employees, or any other person.

Sec. 14. The provisions of this order shall apply to contracts

resulting from solicitations issued on or after the effective date

of this order.

Sec. 15. This order shall become effective 60 days after the date

of this order.

George W. Bush.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 257 of this title; title 8

section 1363a; title 16 section 670o; title 19 section 2081; title

26 section 7608; title 38 section 8122.

-End-

-CITE-

41 USC Sec. 254a 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 254a. Cost-type research and development contracts with

educational institutions

-STATUTE-

On and after September 5, 1962, provision may be made in

cost-type research and development contracts (including grants)

with universities, colleges, or other educational institutions for

payment of reimbursable indirect costs on the basis of

predetermined fixed-percentage rates applied to the total, or an

element thereof, of the reimbursable direct costs incurred.

-SOURCE-

(Pub. L. 87-638, Sept. 5, 1962, 76 Stat. 437.)

-COD-

CODIFICATION

Section was not enacted as part of title III of act June 30,

1949, ch. 288, 63 Stat. 393, which comprises this subchapter.

-End-

-CITE-

41 USC Sec. 254b 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 254b. Cost or pricing data: truth in negotiations

-STATUTE-

(a) Required cost or pricing data and certification

(1) The head of an executive agency shall require offerors,

contractors, and subcontractors to make cost or pricing data

available as follows:

(A) An offeror for a prime contract under this subchapter to be

entered into using procedures other than sealed-bid procedures

shall be required to submit cost or pricing data before the award

of a contract if -

(i) in the case of a prime contract entered into after

October 13, 1994, the price of the contract to the United

States is expected to exceed $500,000; and

(ii) in the case of a prime contract entered into on or

before October 13, 1994, the price of the contract to the

United States is expected to exceed $100,000.

(B) The contractor for a prime contract under this subchapter

shall be required to submit cost or pricing data before the

pricing of a change or modification to the contract if -

(i) in the case of a change or modification made to a prime

contract referred to in subparagraph (A)(i), the price

adjustment is expected to exceed $500,000;

(ii) in the case of a change or modification made to a prime

contract that was entered into on or before October 13, 1994,

and that has been modified pursuant to paragraph (6), the price

adjustment is expected to exceed $500,000; and

(iii) in the case of a change or modification not covered by

clause (i) or (ii), the price adjustment is expected to exceed

$100,000.

under this subchapter 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 section and -

(i) in the case of a subcontract under a prime contract

referred to in subparagraph (A)(i), the price of the

subcontract is expected to exceed $500,000;

(ii) in the case of a subcontract entered into under a prime

contract that was entered into on or before October 13, 1994,

and that has been modified pursuant to paragraph (6), the price

of the subcontract is expected to exceed $500,000; and

(iii) in the case of a subcontract not covered by clause (i)

or (ii), the price of the subcontract is expected to exceed

$100,000.

(D) The subcontractor for a subcontract covered by subparagraph

pricing of a change or modification to the subcontract if -

(i) in the case of a change or modification to a subcontract

referred to in subparagraph (C)(i) or (C)(ii), the price

adjustment is expected to exceed $500,000; and

(ii) in the case of a change or modification to a subcontract

referred to in subparagraph (C)(iii), the price adjustment is

expected to exceed $100,000.

(2) A person required, as an offeror, contractor, or

subcontractor, to submit cost or pricing data under paragraph (1)

(or required by the head of the procuring activity concerned to

submit such data under subsection (c) of this section) 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.

(3) Cost or pricing data required to be submitted under paragraph

(1) (or under subsection (c) of this section), and a certification

required to be submitted under paragraph (2), shall be submitted -

(A) 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

(B) in the case of a submission by a subcontractor (or an

offeror for a subcontract), to the prime contractor.

(4) Except as provided under subsection (b) of this section, this

section applies to contracts entered into by the head of an

executive agency on behalf of a foreign government.

(5) A waiver of requirements for submission of certified cost or

pricing data that is granted under subsection (b)(1)(C) of this

section in the case of a contract or subcontract does not waive the

requirement under paragraph (1)(C) 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 paragraph should

be waived in the case of such subcontracts and justifies in writing

the reasons for the determination.

(6) Upon the request of a contractor that was required to submit

cost or pricing data under paragraph (1) in connection with a prime

contract entered into on or before October 13, 1994, the head of

the executive agency that entered into such contract shall modify

the contract to reflect subparagraphs (B)(ii) and (C)(ii) of

paragraph (1). All such modifications shall be made without

requiring consideration.

(7) Effective on October 1 of each year that is divisible by 5,

each amount set forth in paragraph (1) shall be adjusted to the

amount that is equal to the fiscal year 1994 constant dollar value

of the amount set forth. Any amount, as so adjusted, that is not

evenly divisible by $50,000 shall be rounded to the nearest

multiple of $50,000. In the case of an amount that is evenly

divisible by $25,000 but not evenly divisible by $50,000, the

amount shall be rounded to the next higher multiple of $50,000.

(b) Exceptions

(1) In general

Submission of certified cost or pricing data shall not be

required under subsection (a) of this section in the case of a

contract, a subcontract, or a modification of a contract or

subcontract -

(A) for which the price agreed upon is based on -

(i) adequate price competition; or

(ii) prices set by law or regulation;

(B) for the acquisition of a commercial item; or

activity, without delegation, determines that the requirements

of this section may be waived and justifies in writing the

reasons for such determination.

(2) 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)(A)

or (1)(B), submission of certified cost or pricing data shall not

be required under subsection (a) of this section if -

(A) 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)(A)

or (1)(B); and

(B) the modification would not change the contract or

subcontract, as the case may be, 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.

(1) Authority to require submission

Subject to paragraph (2), when certified cost or pricing data

are not required to be submitted by subsection (a) of this

section 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 subsection, the head of the procuring

activity shall justify in writing the reason for such

requirement.

(2) Exception

The head of the procuring activity may not require certified

cost or pricing data to be submitted under this paragraph for any

contract or subcontract, or modification of a contract or

subcontract, covered by the exceptions in subparagraph (A) or (B)

of subsection (b)(1) of this section.

(3) Delegation of authority prohibited

The head of a procuring activity may not delegate the functions

under this paragraph.

(d) Submission of other information

(1) Authority to require submission

When certified cost or pricing data are not required to be

submitted under this section 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

subsection (b)(1)(A) of this section, 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.

(2) Limitations on authority

The Federal Acquisition Regulation shall include the following

provisions regarding the types of information that contracting

officers may require under paragraph (1):

(A) Reasonable limitations on requests for sales data

relating to commercial items.

(B) 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.

commercial items that is exempt from disclosure under section

552(b) of title 5 shall not be disclosed by the Federal

Government.

(e) Price reductions for defective cost or pricing data

(1)(A) A prime contract (or change or modification to a prime

contract) under which a certificate under subsection (a)(2) of this

section is required shall contain a provision that the price of the

contract to the United States, including profit or fee, shall be

adjusted to exclude any significant amount by which it may be

determined by the head of the executive agency that such price was

increased because the contractor (or any subcontractor required to

make available such a certificate) submitted defective cost or

pricing data.

(B) For the purposes of this section, defective cost or pricing

data are cost or pricing data which, as of the date of agreement on

the price of the contract (or another date agreed upon between the

parties), were inaccurate, incomplete, or noncurrent. If for

purposes of the preceding sentence the parties agree upon a date

other than the date of agreement on the price of the contract, the

date agreed upon by the parties shall be as close to the date of

agreement on the price of the contract as is practicable.

(2) In determining for purposes of a contract price adjustment

under a contract provision required by paragraph (1) whether, and

to what extent, a contract price was increased because the

contractor (or a subcontractor) submitted defective cost or pricing

data, it shall be a defense that the United States did not rely on

the defective data submitted by the contractor or subcontractor.

(3) It is not a defense to an adjustment of the price of a

contract under a contract provision required by paragraph (1) that

(A) the price of the contract would not have been modified even

if accurate, complete, and current cost or pricing data had been

submitted by the contractor or subcontractor because the

contractor or subcontractor -

(i) was the sole source of the property or services procured;

(ii) otherwise was in a superior bargaining position with

respect to the property or services procured;

(B) the contracting officer should have known that the cost or

pricing data in issue were defective even though the contractor

or subcontractor took no affirmative action to bring the

character of the data to the attention of the contracting

officer;

contractor and the United States about the total cost of the

contract and there was no agreement about the cost of each item

procured under such contract; or

(D) the prime contractor or subcontractor did not submit a

certification of cost or pricing data relating to the contract as

required under subsection (a)(2) of this section.

(4)(A) A contractor shall be allowed to offset an amount against

the amount of a contract price adjustment under a contract

provision required by paragraph (1) if -

(i) the contractor certifies to the contracting officer (or to

a designated representative of the contracting officer) that, to

the best of the contractor's knowledge and belief, the contractor

is entitled to the offset; and

(ii) the contractor proves that the cost or pricing data were

available before the date of agreement on the price of the

contract (or price of the modification), or, if applicable

consistent with paragraph (1)(B), another date agreed upon

between the parties, and that the data were not submitted as

specified in subsection (a)(3) of this section before such date.

(B) A contractor shall not be allowed to offset an amount

otherwise authorized to be offset under subparagraph (A) if -

(i) the certification under subsection (a)(2) of this section

with respect to the cost or pricing data involved was known to be

false when signed; or

(ii) the United States proves that, had the cost or pricing

data referred to in subparagraph (A)(ii) been submitted to the

United States before the date of agreement on the price of the

contract (or price of the modification) or, if applicable under

paragraph (1)(B), another date agreed upon between the parties,

the submission of such cost or pricing data would not have

resulted in an increase in that price in the amount to be offset.

(f) Interest and penalties for certain overpayments

(1) If the United States makes an overpayment to a contractor

under a contract with an executive agency subject to this section

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 -

(A) for interest on the amount of such overpayment, to be

computed -

(i) 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

(ii) at the current rate prescribed by the Secretary of the

Treasury under section 6621 of title 26; and

(B) if the submission of such defective data was a knowing

submission, for an additional amount equal to the amount of the

overpayment.

(2) Any liability under this subsection of a contractor that

submits cost or pricing data but refuses to submit the

certification required by subsection (a)(2) of this section with

respect to the cost or pricing data shall not be affected by the

refusal to submit such certification.

(g) Right of United States 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

section, an executive agency shall have the authority provided by

section 254d(a)(2) of this title.

(h) Definitions

In this section:

(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

subsection (e)(1)(B) of this section, 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 items

between divisions, subsidiaries, or affiliates of a contractor or

a subcontractor.

(3) Commercial item

The term "commercial item" has the meaning provided such term

by section 403(12) of this title.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 304A, as added Pub. L.

103-355, title I, Sec. 1251(a)(2), Oct. 13, 1994, 108 Stat. 3278;

amended Pub. L. 104-106, div. D, title XLII, Sec. 4201(b), title

XLIII, Sec. 4321(e)(3), (4), Feb. 10, 1996, 110 Stat. 651, 675;

Pub. L. 105-261, div. A, title VIII, Secs. 805(b), 808(b), Oct. 17,

1998, 112 Stat. 2083, 2085.)

-MISC1-

AMENDMENTS

1998 - Subsec. (a)(5). Pub. L. 105-261, Sec. 805(b), amended par.

(5) generally. Prior to amendment, par. (5) read as follows: "For

purposes of paragraph (1)(C), a contractor or subcontractor granted

a waiver under subsection (b)(1)(B) of this section shall be

considered as having been required to make available cost or

pricing data under this section."

Subsec. (d)(1). Pub. L. 105-261, Sec. 808(b), substituted "the

contracting officer shall require that the data submitted" for "the

data submitted shall".

1996 - Subsec. (b). Pub. L. 104-106, Sec. 4201(b)(1), amended

subsec. (b) generally, substituting pars. (1) and (2) relating to

submission of certified cost or pricing data for former pars. (1)

and (2) relating to submission of cost or pricing data and striking

out par. (3) relating to FAR standards.

Subsec. (c). Pub. L. 104-106, Sec. 4201(b)(1), amended subsec.

to require submission of certified cost or pricing data for former

par. (1) relating to authority to require submission of cost or

pricing data and striking out former par. (2) relating to authority

to require information other than certified cost or pricing data.

Subsec. (c)(1). Pub. L. 104-106, Sec. 4321(e)(3), which directed

amendment of heading of par. (1) by changing each letter that is

capitalized (other than the first letter of the first word) to

lowercase, could not be executed because of the general amendment

of subsec. (c) by Pub. L. 104-106, Sec. 4201(b)(1). See above.

Subsec. (d). Pub. L. 104-106, Sec. 4201(b)(1), amended subsec.

(d) generally, substituting pars. (1) and (2) relating to

submission of other information for former pars. (1) to (6)

relating to additional exceptions regarding commercial items.

Subsec. (d)(2)(A)(ii). Pub. L. 104-106, Sec. 4321(e)(4), which

directed amendment of par. (2)(A)(ii) by inserting "to" after "The

information referred", could not be executed because par. (2)(A)

did not contain a cl. (ii) or the phrase "The information

referred", subsequent to the general amendment of subsec. (d) by

Pub. L. 104-106, Sec. 4201(b)(1). See above.

Subsecs. (h), (i). Pub. L. 104-106, Sec. 4201(b)(2), redesignated

subsec. (i) as (h) and struck out heading and text of former

subsec. (h). Text read as follows: "The Federal Acquisition

Regulation shall include regulations concerning the types of

information that offerors must submit for a contracting officer to

consider in determining whether the price of a procurement to the

Government is fair and reasonable when certified cost or pricing

data are not required to be submitted under this section because

the price of the procurement to the United States is not expected

to exceed the applicable threshold amount set forth in subsection

(a) of this section (as adjusted pursuant to paragraph (7) of such

subsection). Such information, at a minimum, shall include

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 of a proposed contract

or subcontract for the procurement."

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

Section 1251(b) of Pub. L. 103-355, as amended by Pub. L.

104-106, div. D, title XLIII, Sec. 4321(a)(3), Feb. 10, 1996, 110

Stat. 671, provided that: "Subsection (a) of section 304A of the

Federal Property and Administrative Services Act of 1949 [subsec.

(a) of this section], as added by subsection (a), shall apply

according to the provisions thereof on and after the date of the

enactment of this Act [Oct. 13, 1994], notwithstanding section

10001(b) [see Effective Date of 1994 Amendment note set out under

section 251 of this title]."

[Section 4321(a) of Pub. L. 104-106 provided that the amendment

made by that section to section 1251(b) of Pub. L. 103-355, set out

above, is effective as of Oct. 13, 1994, and as if included in Pub.

L. 103-355 as enacted.]

ELIGIBILITY FOR CONTRACTS AND SUBCONTRACTS TO BE CONDITIONED ON

COMPLIANCE

Pub. L. 105-261, div. A, title VIII, Sec. 808(c), Oct. 17, 1998,

112 Stat. 2085, provided that: "Not later than 180 days after the

date of the enactment of this Act [Oct. 17, 1998], the Federal

Acquisition Regulation shall be amended to provide that an

offeror's compliance with a requirement to submit data for a

contract or subcontract in accordance with section 2306a(d)(1) of

title 10, United States Code, or section 304A(d)(1) of the Federal

Property and Administrative Services Act of 1949 [41 U.S.C.

254b(d)(1)] shall be a condition for the offeror to be eligible to

enter into the contract or subcontract, subject to such exceptions

as the Federal Acquisition Regulatory Council determines

appropriate."

CRITERIA FOR DETERMINING SPECIFIC PRICE INFORMATION REQUIRED

Pub. L. 105-261, div. A, title VIII, Sec. 808(d), Oct. 17, 1998,

112 Stat. 2085, provided that: "Not later than 180 days after the

date of the enactment of this Act [Oct. 17, 1998], the Federal

Acquisition Regulation shall be amended to include criteria for

contracting officers to apply for determining the specific price

information that an offeror should be required to submit under

section 2306a(d) of title 10, United States Code, or section

304A(d) of the Federal Property and Administrative Services Act of

1949 (41 U.S.C. 254b(d))."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 254d, 423 of this title;

title 15 section 205c.

-End-

-CITE-

41 USC Sec. 254c 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 254c. Multiyear contracts

-STATUTE-

(a) Authority

An executive agency may enter into a multiyear contract for the

acquisition of property or services if -

(1) funds are available and obligated for such 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 any necessary termination of such 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

United States by encouraging full and open competition or

promoting economy in administration, performance, and operation

of the agency's programs.

(b) 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 such contract in any fiscal year covered by the

contract. Amounts available for paying termination costs shall

remain available for such purpose until the costs associated with

termination of the contract are paid.

Before any contract described in subsection (a) of this section

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 the Congress,

and such contract may not then be awarded until the end of a period

of 30 days beginning on the date of such notification.

(d) Multiyear contract defined

For the purposes of this section, a multiyear contract is a

contract for the purchase of property or services for more than

one, but not more than five, program years. Such a contract may

provide that performance under the contract during the second and

subsequent years of the contract is contingent upon the

appropriation of funds and (if it does so provide) may provide for

a cancellation payment to be made to the contractor if such

appropriations are not made.

(e) Rule of construction

Nothing in this section is intended to modify or affect any other

provision of law that authorizes multiyear contracts.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 304B, as added Pub. L.

103-355, title I, Sec. 1072, Oct. 13, 1994, 108 Stat. 3270.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 253l-1, 253l-2, 253l-3,

253l-4 of this title; title 42 section 7274n.

-End-

-CITE-

41 USC Sec. 254d 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 254d. Examination of records of contractor

-STATUTE-

(a) Agency authority

(1) The head of an executive agency, acting through an authorized

representative, is authorized to inspect the plant and audit the

records of -

(A) a contractor performing a cost-reimbursement, incentive,

time-and-materials, labor-hour, or price-redeterminable contract,

or any combination of such contracts, made by that executive

agency under this subchapter; and

(B) a subcontractor performing any cost-reimbursement,

incentive, time-and-materials, labor-hour, or

price-redeterminable subcontract or any combination of such

subcontracts under a contract referred to in subparagraph (A).

(2) The head of an executive agency, acting through an authorized

representative, is authorized, for the purpose of evaluating the

accuracy, completeness, and currency of certified cost or pricing

data required to be submitted pursuant to section 254b of this

title with respect to a contract or subcontract, to examine all

records of the contractor or subcontractor related to -

(A) the proposal for the contract or subcontract;

(B) the discussions conducted on the proposal;

(D) performance of the contract or subcontract.

(b) Subpoena power

(1) The Inspector General of an executive agency appointed under

section 3 or 8G (!1) of the Inspector General Act of 1978 (5 U.S.C.

App.) or, upon request of the head of an executive agency, the

Director of the Defense Contract Audit Agency (or any successor

agency) of the Department of Defense or the Inspector General of

the General Services Administration may require by subpoena the

production of records of a contractor, access to which is provided

for that executive agency by subsection (a) of this section.

(2) Any such subpoena, in the case of contumacy or refusal to

obey, shall be enforceable by order of an appropriate United States

district court.

(3) The authority provided by paragraph (1) may not be delegated.

(4) In the year following a year in which authority provided in

paragraph (1) is exercised for an executive agency, the head of the

executive agency shall submit to the Committee on Governmental

Affairs of the Senate and the Committee on Government Operations of

the House of Representatives a report on the exercise of such

authority during such preceding year and the reasons why such

authority was exercised in any instance.

(1) Except as provided in paragraph (2), each contract awarded

after using procedures other than sealed bid procedures shall

provide that the Comptroller General and his representatives are

authorized to examine any records of the contractor, or any of its

subcontractors, that directly pertain to, and involve transactions

relating to, the contract or subcontract.

(2) Paragraph (1) does not apply to a contract or subcontract

with a foreign contractor or foreign subcontractor if the executive

agency concerned determines, with the concurrence of the

Comptroller General or his designee, that the application of that

paragraph to the contract or subcontract would not be in the public

interest. However, the concurrence of the Comptroller General or

his designee is not required -

(A) where the contractor or subcontractor is a foreign

government or agency thereof or is precluded by the laws of the

country involved from making its records available for

examination; and

(B) where the executive agency determines, after taking into

account the price and availability of the property and services

from United States sources, that the public interest would be

best served by not applying paragraph (1).

(3) Paragraph (1) may not be construed to require a contractor or

subcontractor to create or maintain any record that the contractor

or subcontractor does not maintain in the ordinary course of

business or pursuant to another provision of law.

(d) Limitation on audits relating to indirect costs

An executive agency may not perform an audit of indirect costs

under a contract, subcontract, or modification before or after

entering into the contract, subcontract, or modification in any

case in which the contracting officer determines that the

objectives of the audit can reasonably be met by accepting the

results of an audit that was conducted by any other department or

agency of the Federal Government within one year preceding the date

of the contracting officer's determination.

(e) Limitation

The authority of an executive agency under subsection (a) of this

section, and the authority of the Comptroller General under

subsection (c) of this section, with respect to a contract or

subcontract shall expire three years after final payment under such

contract or subcontract.

(f) Inapplicability to certain contracts

This section does not apply to the following contracts:

(1) Contracts for utility services at rates not exceeding those

established to apply uniformly to the public, plus any applicable

reasonable connection charge.

(2) A contract or subcontract that is not greater than the

simplified acquisition threshold.

(g) Form of original record storage

Nothing in this section shall be construed to preclude a

contractor from duplicating or storing original records in

electronic form.

(h) Use of images of original records

An executive agency shall not require a contractor or

subcontractor to provide original records in an audit carried out

pursuant to this section if the contractor or subcontractor

provides photographic or electronic images of the original records

and meets the following requirements:

(1) The contractor or subcontractor has established procedures

to ensure that the imaging process preserves the integrity,

reliability, and security of the original records.

(2) The contractor or subcontractor maintains an effective

indexing system to permit timely and convenient access to the

imaged records.

(3) The contractor or subcontractor retains the original

records for a minimum of one year after imaging to permit

periodic validation of the imaging systems.

(i) "Records" defined

In this section, the term "records" includes books, documents,

accounting procedures and practices, and other data, regardless of

type and regardless of whether such items are in written form, in

the form of computer data, or in any other form.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 304C, as added and amended

Pub. L. 103-355, title II, Sec. 2251(a), title IV, Sec. 4103(d),

Oct. 13, 1994, 108 Stat. 3318, 3341; Pub. L. 104-106, div. D, title

XLIII, Sec. 4321(e)(5), Feb. 10, 1996, 110 Stat. 675; Pub. L.

104-201, div. A, title VIII, Sec. 808(b), Sept. 23, 1996, 110 Stat.

2607.)

-REFTEXT-

REFERENCES IN TEXT

Section 3 and 8G of the Inspector General Act of 1978, referred

to in subsec. (b)(1), are sections 3 and 8G of Pub. L. 95-452,

which are set out in the Appendix to Title 5, Government

Organization and Employees. The reference to section 8G of the Act

probably means the section 8G which was renumbered by Pub. L.

103-204, Sec. 23(a)(3), Dec. 17, 1993, 107 Stat. 2408, and which

relates to requirements for Federal entities and designated Federal

entities.

-MISC1-

AMENDMENTS

1996 - Subsec. (a)(2). Pub. L. 104-106 substituted "section 254b"

for "section 254c".

Subsec. (d). Pub. L. 104-201 amended heading and text of subsec.

(d) generally. Prior to amendment, text read as follows: "An

executive agency may not perform a preaward audit to evaluate

proposed indirect costs under any contract, subcontract, or

modification to be entered into in accordance with this subchapter

in any case in which the contracting officer determines that the

objectives of the audit can reasonably be met by accepting the

results of an audit conducted by any other department or agency of

the Federal Government within one year preceding the date of the

contracting officer's determination."

1994 - Subsec. (f)(2). Pub. L. 103-355, Sec. 4103(d), added par.

(2).

-CHANGE-

CHANGE OF NAME

Committee on Government Operations of House of Representatives

treated as referring to Committee on Government Reform and

Oversight of House of Representatives by section 1(a) of Pub. L.

104-14, set out as a note preceding section 21 of Title 2, The

Congress. Committee on Government Reform and Oversight of House of

Representatives changed to Committee on Government Reform of House

of Representatives by House Resolution No. 5, One Hundred Sixth

Congress, Jan. 6, 1999.

-MISC2-

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE

For effective date and applicability of section, including

amendment by Pub. L. 103-355, see section 10001 of Pub. L. 103-355,

set out as an Effective Date of 1994 Amendment note under section

251 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 254b, 262 of this title.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

41 USC Sec. 255 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 255. Contract financing

-STATUTE-

(a) Payment authority

Any executive agency may -

(1) make advance, partial, progress or other payments under

contracts for property or services made by the agency; and

(2) insert in solicitations for procurement of property or

services a provision limiting to small business concerns advance

or progress payments.

(b) Performance-based payments

Whenever practicable, payments under subsection (a) of this

section shall be made on any of the following bases:

(1) Performance measured by objective, quantifiable methods

such as delivery of acceptable items, work measurement, or

statistical process controls.

(2) Accomplishment of events defined in the program management

plan.

(3) Other quantifiable measures of results.

Payments made under subsection (a) of this section may not exceed

the unpaid contract price.

(d) Security for advance payments

Advance payments under subsection (a) of this section may be made

only upon adequate security and a determination by the agency head

that to do so would be in the public interest. Such security may be

in the form of a lien in favor of the Government on the property

contracted for, on the balance in an account in which such payments

are deposited, and on such of the property acquired for performance

of the contract as the parties may agree. This lien shall be

paramount to all other liens and is effective immediately upon the

first advancement of funds without filing, notice, or any other

action by the United States.

(e) Conditions for progress payments

(1) The executive agency shall ensure that any payment for work

in progress (including materials, labor, and other items) under a

contract of an executive agency that provides for such payments is

commensurate with the work accomplished that meets standards

established under the contract. The contractor shall provide such

information and evidence as the executive agency determines

necessary to permit the executive agency to carry out the preceding

sentence.

(2) The executive agency shall ensure that progress payments

referred to in paragraph (1) are not made for more than 80 percent

of the work accomplished under the contract so long as the

executive agency has not made the contractual terms,

specifications, and price definite.

(3) This subsection applies to any contract in an amount greater

than $25,000.

(f) Conditions for payments for commercial items

(1) Payments under subsection (a) of this section for commercial

items may be made under such terms and conditions as the head of

the executive agency determines are appropriate or customary in the

commercial marketplace and are in the best interests of the United

States. The head of the executive agency shall obtain adequate

security for such payments. If the security is in the form of a

lien in favor of the United States, such lien is paramount to all

other liens and is effective immediately upon the first payment,

without filing, notice, or other action by the United States.

(2) Advance payments made under subsection (a) of this section

for commercial items may include payments, in a total amount of not

more than 15 percent of the contract price, in advance of any

performance of work under the contract.

(3) The conditions of subsections (d) and (e) of this section

need not be applied if they would be inconsistent, as determined by

the head of the executive agency, with commercial terms and

conditions pursuant to paragraphs (1) and (2).

(g) Action in case of fraud

(1) In any case in which the remedy coordination official of an

executive agency finds that there is substantial evidence that the

request of a contractor for advance, partial, or progress payment

under a contract awarded by that executive agency is based on

fraud, the remedy coordination official shall recommend that the

executive agency reduce or suspend further payments to such

contractor.

(2) The head of an executive agency receiving a recommendation

under paragraph (1) in the case of a contractor's request for

payment under a contract shall determine whether there is

substantial evidence that the request is based on fraud. Upon

making such a determination, the head of the executive agency may

reduce or suspend further payments to the contractor under such

contract.

(3) The extent of any reduction or suspension of payments by an

executive agency under paragraph (2) on the basis of fraud shall be

reasonably commensurate with the anticipated loss to the United

States resulting from the fraud.

(4) A written justification for each decision of the head of an

executive agency whether to reduce or suspend payments under

paragraph (2), and for each recommendation received by the

executive agency in connection with such decision, shall be

prepared and be retained in the files of the executive agency.

(5) The head of each executive agency shall prescribe procedures

to ensure that, before the head of the executive agency decides to

reduce or suspend payments in the case of a contractor under

paragraph (2), the contractor is afforded notice of the proposed

reduction or suspension and an opportunity to submit matters to the

executive agency in response to such proposed reduction or

suspension.

(6) Not later than 180 days after the date on which the head of

an executive agency reduces or suspends payments to a contractor

under paragraph (2), the remedy coordination official of the

executive agency shall -

(A) review the determination of fraud on which the reduction or

suspension is based; and

(B) transmit a recommendation to the head of such executive

agency whether the suspension or reduction should continue.

(7) The head of each executive agency who receives

recommendations made by a remedy coordination official of the

executive agency to reduce or suspend payments under paragraph (2)

during a fiscal year shall prepare for such year a report that

contains the recommendations, the actions taken on the

recommendations and the reasons for such actions, and an assessment

of the effects of such actions on the Federal Government. Any such

report shall be available to any Member of Congress upon request.

(8) The head of an executive agency may not delegate

responsibilities under this subsection to any person in a position

below level IV of the Executive Schedule.

(9) In this subsection, the term "remedy coordination official",

with respect to an executive agency, means the person or entity in

that executive agency who coordinates within that executive agency

the administration of criminal, civil, administrative, and

contractual remedies resulting from investigations of fraud or

corruption related to procurement activities.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 305, 63 Stat. 396; July

12, 1952, ch. 703, Sec. 1(m), 66 Stat. 594; Pub. L. 85-800, Sec. 4,

Aug. 28, 1958, 72 Stat. 966; Pub. L. 103-355, title II, Sec.

2051(a)-(e), Oct. 13, 1994, 108 Stat. 3303, 3304; Pub. L. 104-106,

div. D, title XLIII, Sec. 4321(a)(4), Feb. 10, 1996, 110 Stat.

671.)

-REFTEXT-

REFERENCES IN TEXT

Level IV of the Executive Schedule, referred to in subsec.

(g)(8), is set out in section 5315 of Title 5, Government

Organization and Employees.

-MISC1-

AMENDMENTS

1996 - Subsecs. (e) to (g). Pub. L. 104-106 made technical

correction to directory language of Pub. L. 103-355, Sec. 2051(e).

See 1994 Amendment note below.

1994 - Pub. L. 103-355, Sec. 2051(a)(1), inserted section

catchline.

Subsec. (a). Pub. L. 103-355, Sec. 2051(a)(2), (c), inserted

heading and struck out "bid" before "solicitations" in par. (2).

Subsec. (b). Pub. L. 103-355, Sec. 2051(a)(5), (b), added subsec.

(b) and redesignated former subsec. (b) as (c).

Pub. L. 103-355, Sec. 2051(a)(3), inserted heading.

Subsec. (c). Pub. L. 103-355, Sec. 2051(a)(5), redesignated

subsec. (b) as (c). Former subsec. (c) redesignated (d).

Pub. L. 103-355, Sec. 2051(a)(4), inserted heading.

Subsec. (d). Pub. L. 103-355, Sec. 2051(d), inserted before

period at end of third sentence "and is effective immediately upon

the first advancement of funds without filing, notice, or any other

action by the United States".

Pub. L. 103-355, Sec. 2051(a)(5), redesignated subsec. (c) as

(d).

Subsecs. (e) to (g). Pub. L. 103-355, Sec. 2051(e), as amended by

Pub. L. 104-106, added subsecs. (e) to (g).

1958 - Pub. L. 85-800 authorized advance or other payments under

contracts for property or services by agency and insertion in bid

solicitations of provision limiting advance or progress payments to

small business concerns, restricted payments under subsec. (a) of

this section to unpaid contract price, and reworded generally

conditions for making advance payments.

1952 - Subsecs. (a), (b). Act July 12, 1952, substituted

"property" for "supplies" wherever appearing.

EFFECTIVE DATE OF 1996 AMENDMENT

Section 4321(a) of Pub. L. 104-106 provided that the amendment

made by that section is effective as of Oct. 13, 1994, and as if

included in Pub. L. 103-355 as enacted.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

EXEMPTION OF FUNCTIONS

Functions authorized by Foreign Assistance Act of 1961, as

amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30

F.R. 6635, set out as a note under section 2393 of Title 22,

Foreign Relations and Intercourse.

RELATIONSHIP TO PROMPT PAYMENT REQUIREMENTS

Section 2051(f) of Pub. L. 103-355 provided that: "The amendments

made by this section [amending this section] are not intended to

impair or modify procedures required by the provisions of chapter

39 of title 31, United States Code, and the regulations issued

pursuant to such provisions of law (as such procedures are in

effect on the date of the enactment of this Act [Oct. 13, 1994]),

except that the Government may accept payment terms offered by a

contractor offering a commercial item."

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 257, 262 of this title;

title 8 section 1363a; title 19 section 2081; title 26 section

7608.

-End-

-CITE-

41 USC Sec. 256 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 256. Allowable costs

-STATUTE-

(a) Indirect cost that violates FAR cost principle

An executive agency shall require that a covered contract provide

that if the contractor submits to the executive 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 (referred to in section 421(c)(1) of this title) or an

executive agency supplement to the Federal Acquisition Regulation,

the cost shall be disallowed.

(b) Penalty for violation of cost principle

(1) If the executive 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) of this

section that defines the allowability of specific selected costs,

the executive 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) If the executive 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 executive 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.

The Federal Acquisition Regulation shall provide for a penalty

under subsection (b) of this section 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 an executive agency under subsection (a) or (b) of

this section -

(1) shall be considered a final decision for the purposes of

section 605 of this title; and

(2) is appealable in the manner provided in section 606 of this

title.

(e) Specific costs not allowable

(1) The following costs are not allowable under a covered

contract:

(A) Costs of entertainment, including amusement, diversion, and

social activities, and any costs directly associated with such

costs (such as tickets to shows or sports events, meals, lodging,

rentals, transportation, and gratuities).

(B) Costs incurred to influence (directly or indirectly)

legislative action on any matter pending before Congress, a State

legislature, or a legislative body of a political subdivision of

a State.

proceeding or similar proceeding (including filing of any false

certification) brought by the United States where the contractor

is found liable or had pleaded nolo contendere to a charge of

fraud or similar proceeding (including filing of a false

certification).

(D) Payments of fines and penalties resulting from violations

of, or failure to comply with, Federal, State, local, or foreign

laws and regulations, except when incurred as a result of

compliance with specific terms and conditions of the contract or

specific written instructions from the contracting officer

authorizing in advance such payments in accordance with

applicable provisions of the Federal Acquisition Regulation.

(E) Costs of membership in any social, dining, or country club

or organization.

(F) Costs of alcoholic beverages.

(G) Contributions or donations, regardless of the recipient.

(H) Costs of advertising designed to promote the contractor or

its products.

(I) Costs of promotional items and memorabilia, including

models, gifts, and souvenirs.

(J) Costs for travel by commercial aircraft which exceed the

amount of the standard commercial fare.

(K) Costs incurred in making any payment (commonly known as a

"golden parachute payment") which is -

(i) in an amount in excess of the normal severance pay paid

by the contractor to an employee upon termination of

employment; and

(ii) is paid to the employee contingent upon, and following,

a change in management control over, or ownership of, the

contractor or a substantial portion of the contractor's assets.

(L) Costs of commercial insurance that protects against the

costs of the contractor for correction of the contractor's own

defects in materials or workmanship.

(M) Costs of severance pay paid by the contractor to foreign

nationals employed by the contractor under a service contract

performed outside the United States, to the extent that the

amount of severance pay paid in any case exceeds the amount paid

in the industry involved under the customary or prevailing

practice for firms in that industry providing similar services in

the United States, as determined under the Federal Acquisition

Regulation.

(N) Costs of severance pay paid by the contractor to a foreign

national employed by the contractor under a service contract

performed in a foreign country if the termination of the

employment of the foreign national is the result of the closing

of, or the curtailment of activities at, a United States facility

in that country at the request of the government of that country.

(O) Costs incurred by a contractor in connection with any

criminal, civil, or administrative proceeding commenced by the

United States or a State, to the extent provided in subsection

(k) of this section.

(P) Costs of compensation of senior executives of contractors

for a fiscal year, regardless of the contract funding source, to

the extent that such compensation exceeds the benchmark

compensation amount determined applicable for the fiscal year by

the Administrator for Federal Procurement Policy under section

435 of this title.

(2)(A) Pursuant to the Federal Acquisition Regulation and subject

to the availability of appropriations, an executive agency, in

awarding a covered contract, may waive the application of the

provisions of paragraphs (1)(M) and (1)(N) to that contract if the

executive agency determines that -

(i) the application of such provisions to the contract would

adversely affect the continuation of a program, project, or

activity that provides significant support services for employees

of the executive agency posted outside the United States;

(ii) the contractor has taken (or has established plans to

take) appropriate actions within the contractor's control to

minimize the amount and number of incidents of the payment of

severance pay by the contractor to employees under the contract

who are foreign nationals; and

(iii) the payment of severance pay is necessary in order to

comply with a law that is generally applicable to a significant

number of businesses in the country in which the foreign national

receiving the payment performed services under the contract or is

necessary to comply with a collective bargaining agreement.

(B) An executive agency shall include in the solicitation for a

covered contract a statement indicating -

(i) that a waiver has been granted under subparagraph (A) for

the contract; or

(ii) whether the executive agency will consider granting such a

waiver, and, if the executive agency will consider granting a

waiver, the criteria to be used in granting the waiver.

regarding whether to grant a waiver under subparagraph (A) with

respect to a covered contract before award of the contract.

(3) The provisions of the Federal Acquisition Regulation

implementing this section may establish appropriate definitions,

exclusions, limitations, and qualifications. Any submission by a

contractor of costs which are incurred by the contractor and which

are claimed to be allowable under Department of Energy management

and operating contracts shall be considered a "proposal for

settlement of indirect costs incurred by the contractor for any

period after such costs have been accrued", as used in this

section.

(f) Required regulations

(1) 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. The

regulations shall, at a minimum, clarify the cost principles

applicable to contractor costs of the following:

(A) Air shows.

(B) Membership in civic, community, and professional

organizations.

(D) Employee morale and welfare.

(E) 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).

(F) Community relations.

(G) Dining facilities.

(H) Professional and consulting services, including legal

services.

(I) Compensation.

(J) Selling and marketing.

(K) Travel.

(L) Public relations.

(M) Hotel and meal expenses.

(N) Expense of corporate aircraft.

(O) Company-furnished automobiles.

(P) Advertising.

(Q) Conventions.

(2) The Federal Acquisition Regulation shall require that a

contracting officer not resolve any questioned costs until the

contracting officer has obtained -

(A) adequate documentation with respect to such costs; and

(B) the opinion of the contract auditor on the allowability of

such costs.

(3) 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.

(4) 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 such a manner that the amount of the individual questioned costs

that are paid will be reflected in the settlement.

(g) Applicability of regulations to subcontractors

The regulations referred to in subsections (e) and (f)(1) of this

section 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.

(h) Contractor certification required

(1) 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.

(2) An executive agency may, in an exceptional case, waive the

requirement for certification under paragraph (1) in the case of

any contract if the agency -

(A) determines in such case that it would be in the interest of

the United States to waive such certification; and

(B) states in writing the reasons for that determination and

makes such determination available to the public.

(i) Penalties for submission of cost known as not allowable

The submission to an executive 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.

(j) Contractor to have burden of proof

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 United States is in issue, the burden of

proof shall be upon the contractor to establish that those costs

are reasonable.

(k) Proceeding costs not allowable

(1) Except as otherwise provided in this subsection, costs

incurred by a contractor in connection with any criminal, civil, or

administrative proceeding commenced by the United States or a State

are not allowable as reimbursable costs under a covered contract if

the proceeding (A) relates to a violation of, or failure to comply

with, a Federal or State statute or regulation, and (B) results in

a disposition described in paragraph (2).

(2) A disposition referred to in paragraph (1)(B) is any of the

following:

(A) In the case of a criminal proceeding, a conviction

(including a conviction pursuant to a plea of nolo contendere) by

reason of the violation or failure referred to in paragraph (1).

(B) In the case of a civil or administrative proceeding

involving an allegation of fraud or similar misconduct, a

determination of contractor liability on the basis of the

violation or failure referred to in paragraph (1).

imposition of a monetary penalty by reason of the violation or

failure referred to in paragraph (1).

(D) A final decision -

(i) to debar or suspend the contractor,

(ii) to rescind or void the contract, or

(iii) to terminate the contract for default,

by reason of the violation or failure referred to in paragraph

(1).

(E) A disposition of the proceeding by consent or compromise if

such action could have resulted in a disposition described in

subparagraph (A), (B), (C), or (D).

(3) In the case of a proceeding referred to in paragraph (1) that

is commenced by the United States and is resolved by consent or

compromise pursuant to an agreement entered into by a contractor

and the United States, the costs incurred by the contractor in

connection with such proceeding that are otherwise not allowable as

reimbursable costs under such paragraph may be allowed to the

extent specifically provided in such agreement.

(4) In the case of a proceeding referred to in paragraph (1) that

is commenced by a State, the executive agency that awarded the

covered contract involved in the proceeding may allow the costs

incurred by the contractor in connection with such proceeding as

reimbursable costs if the executive agency determines, in

accordance with the Federal Acquisition Regulation, that the costs

were incurred as a result of (A) a specific term or condition of

the contract, or (B) specific written instructions of the executive

agency.

(5)(A) Except as provided in subparagraph (C), costs incurred by

a contractor in connection with a criminal, civil, or

administrative proceeding commenced by the United States or a State

in connection with a covered contract may be allowed as

reimbursable costs under the contract if such costs are not

disallowable under paragraph (1), but only to the extent provided

in subparagraph (B).

(B)(i) The amount of the costs allowable under subparagraph (A)

in any case may not exceed the amount equal to 80 percent of the

amount of the costs incurred, to the extent that such costs are

determined to be otherwise allowable and allocable under the

Federal Acquisition Regulation.

(ii) Regulations issued for the purpose of clause (i) shall

provide for appropriate consideration of the complexity of

procurement litigation, generally accepted principles governing the

award of legal fees in civil actions involving the United States as

a party, and such other factors as may be appropriate.

contractor costs otherwise allowable as reimbursable costs under

this paragraph are not allowable if (i) such proceeding involves

the same contractor misconduct alleged as the basis of another

criminal, civil, or administrative proceeding, and (ii) the costs

of such other proceeding are not allowable under paragraph (1).

(6) In this subsection:

(A) The term "proceeding" includes an investigation.

(B) The term "costs", with respect to a proceeding -

(i) means all costs incurred by a contractor, whether before

or after the commencement of any such proceeding; and

(ii) includes -

(I) administrative and clerical expenses;

(II) the cost of legal services, including legal services

performed by an employee of the contractor;

(III) the cost of the services of accountants and

consultants retained by the contractor; and

(IV) the pay of directors, officers, and employees of the

contractor for time devoted by such directors, officers, and

employees to such proceeding.

reimbursement, or compensatory damages.

(l) "Covered contract" defined

(1) In this section, 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 such term does not include a

fixed-price contract without cost incentives or any firm, fixed

price contract for the purchase of commercial items.

(2) Effective on October 1 of each year that is divisible by

five, the amount set forth in paragraph (1) shall be adjusted to

the equivalent amount in constant fiscal year 1994 dollars. An

amount, as so adjusted, that is not evenly divisible by $50,000

shall be rounded to the nearest multiple of $50,000. In the case of

an amount that 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.

(m) Other definitions

In this section:

(1) 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) The term "senior executives", with respect to a contractor,

means the five most highly compensated employees in management

positions at each home office and each segment of the contractor.

(3) The term "fiscal year" means a fiscal year established by a

contractor for accounting purposes.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 306, as added Pub. L.

100-700, Sec. 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; amended Pub.

L. 103-355, title II, Sec. 2151, Oct. 13, 1994, 108 Stat. 3309;

Pub. L. 105-85, div. A, title VIII, Sec. 808(b), Nov. 18, 1997, 111

Stat. 1836; Pub. L. 105-261, div. A, title VIII, Sec. 804(b), Oct.

17, 1998, 112 Stat. 2083.)

-MISC1-

PRIOR PROVISIONS

A prior section 256, act June 30, 1949, ch. 288, title III, Sec.

306, 63 Stat. 396, related to waiver of liquidated damages, prior

to repeal by act Sept. 5, 1950, ch. 849, Sec. 10(b), 64 Stat. 591,

eff. July 1, 1949. See section 256a of this title.

AMENDMENTS

1998 - Subsec. (m)(2). Pub. L. 105-261 amended par. (2)

generally. Prior to amendment, par. (2) read as follows: "The term

'senior executive', with respect to a contractor, means -

"(A) the chief executive officer of the contractor or any

individual acting in a similar capacity for the contractor;

"(B) the four most highly compensated employees in management

positions of the contractor other than the chief executive

officer; and

"(C) in the case of a contractor that has components which

report directly to the contractor's headquarters, the five most

highly compensated individuals in management positions at each

such component."

1997 - Subsec. (e)(1)(P). Pub. L. 105-85, Sec. 808(b)(1), added

subpar. (P).

Subsec. (m). Pub. L. 105-85, Sec. 808(b)(2), added subsec. (m).

1994 - Pub. L. 103-355 amended section generally, substituting

present provisions for provisions outlining limitations on

allowability of costs incurred by contractors in criminal, civil,

or administrative proceedings relating to violations of Federal or

State statutes or regulations, which resulted in dispositions

against contractors based on such violations.

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-261 applicable with respect to costs of

compensation of senior executives incurred after Jan. 1, 1999,

under covered contracts entered into before, on, or after Oct. 17,

1998, see section 804(d) of Pub. L. 105-261, set out as a note

under section 2324 of Title 10, Armed Forces.

EFFECTIVE DATE OF 1997 AMENDMENT

Amendment by Pub. L. 105-85 effective on date that is 90 days

after Nov. 18, 1997, and applicable with respect to costs of

compensation incurred after Jan. 1, 1998, under covered contracts

entered into before, on, or after Nov. 18, 1997, see section 808(e)

of Pub. L. 105-85, set out as an Effective Date note under section

435 of this title.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. l. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE

Section effective with respect to contracts awarded after Nov.

19, 1988, see section 8(e) of Pub. L. 100-700, set out as an

Effective and Termination Dates of 1988 Amendment note under

section 2324 of Title 10, Armed Forces.

REVISION OF COST PRINCIPLE RELATING TO ENTERTAINMENT, GIFT, AND

RECREATION COSTS FOR CONTRACTOR EMPLOYEES

Section 2192 of Pub. L. 103-355 provided that:

"(a) Costs Not Allowable. - (1) The costs of gifts or recreation

for employees of a contractor or members of their families that are

provided by the contractor to improve employee morale or

performance or for any other purpose are not allowable under a

covered contract unless, within 120 days after the date of the

enactment of this Act [Oct. 13, 1994], the Federal Acquisition

Regulatory Council prescribes amendments to the Federal Acquisition

Regulation specifying circumstances under which such costs are

allowable under a covered contract.

"(2) Not later than 90 days after the date of the enactment of

this Act, the Federal Acquisition Regulatory Council shall amend

the cost principle in the Federal Acquisition Regulation that is

set out in section 31.205-14 of title 48, Code of Federal

Regulations, relating to unallowability of entertainment costs -

"(A) by inserting in the cost principle a statement that costs

made specifically unallowable under that cost principle are not

allowable under any other cost principle; and

"(B) by striking out '(but see 31.205-1 and 31.205-13)'.

"(b) Definitions. - In this section:

"(1) The term 'employee' includes officers and directors of a

contractor.

"(2) The term 'covered contract' has the meaning given such

term in section 2324(l) of title 10, United States Code (as

amended by section 2101(c)), and section 306(l) of the Federal

Property and Administrative Services Act of 1949 (as added by

section 2151) [41 U.S.C. 256(l)].

"(c) Effective Date. - Any amendments to the Federal Acquisition

Regulation made pursuant to subsection (a) shall apply with respect

to costs incurred after the date on which the amendments made by

section 2101 apply (as provided in section 10001) [set out as an

Effective Date of 1994 Amendment note under section 251 of this

title]) or the date on which the amendments made by section 2151

apply (as provided in section 10001), whichever is later."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 435 of this title.

-End-

-CITE-

41 USC Sec. 256a 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 256a. Waiver of liquidated damages

-STATUTE-

Whenever any contract made on behalf of the Government by the

head of any Federal Agency, or by officers authorized by him so to

do, includes a provision for liquidated damages for delay, the

Secretary of the Treasury upon recommendation of such head is

authorized and empowered to remit the whole or any part of such

damages as in his discretion may be just and equitable.

-SOURCE-

(Sept. 5, 1950, ch. 849, Sec. 10(a), 64 Stat. 591; Pub. L. 104-316,

title II, Sec. 202(u), Oct. 19, 1996, 110 Stat. 3845.)

-COD-

CODIFICATION

Section was not enacted as part of title III of act June 30,

1949, ch. 288, 63 Stat. 393, which comprises this subchapter.

-MISC1-

AMENDMENTS

1996 - Pub. L. 104-316 substituted "Secretary of the Treasury"

for "Comptroller General".

-End-

-CITE-

41 USC Sec. 257 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 257. Administrative determinations

-STATUTE-

(a) Conclusiveness; delegation of powers

Determinations and decisions provided in this Act to be made by

the Administrator or other agency head shall be final. Such

determinations or decisions may be made with respect to individual

purchases or contracts or, except for determinations or decisions

under sections 253, 253a, and 253b of this title, with respect to

classes of purchases or contracts. Except as provided in section

253(d)(2) of this title, and except as provided in section

121(d)(1) and (2) of title 40 with respect to the Administrator,

the agency head is authorized to delegate his powers provided by

this Act, including the making of such determinations and

decisions, in his discretion and subject to his direction, to any

other officer or officers or officials of the agency.

(b) Basis of determinations; finding conclusive; preservation of

findings; copy

Each determination or decision required by section 254 or by

section 255(d) of this title shall be based upon written findings

made by the official making such determination, which findings

shall be final and shall be available within the agency for a

period of at least six years following the date of the

determination.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 307, 63 Stat. 396; Pub. L.

85-800, Sec. 5, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89-343, Secs.

3, 4, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98-369, div. B, title

VII, Sec. 2714(a)(4), July 18, 1984, 98 Stat. 1184; Pub. L.

104-106, div. D, title XLIII, Sec. 4321(e)(6), Feb. 10, 1996, 110

Stat. 675; Pub. L. 104-316, title I, Sec. 121(c), Oct. 19, 1996,

110 Stat. 3836.)

-REFTEXT-

REFERENCES IN TEXT

This Act, referred to in subsec. (a), is act June 30, 1949, ch.

288, 63 Stat. 377, as amended, known as the Federal Property and

Administrative Services Act of 1949. Except for title III of the

Act, which is classified generally to this subchapter, the Act was

repealed and reenacted by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304, as chapters 1 to 11 of Title 40, Public

Buildings, Property, and Works.

-COD-

CODIFICATION

"Section 121(d)(1) and (2) of title 40" substituted in subsec.

(a) for "section 205(d)", meaning section 205(d) of the Federal

Property and Administrative Services Act of 1949, on authority of

Pub. L. 107-217, Sec. 5(c), Aug. 21, 2002, 116 Stat. 1303, the

first section of which enacted Title 40, Public Buildings,

Property, and Works.

-MISC1-

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-316 struck out at end "A copy of

the findings shall be submitted to the General Accounting Office

with the contract."

Pub. L. 104-106 substituted "section 255(d)" for "section

255(c)".

1984 - Subsec. (a). Pub. L. 98-369, Sec. 2714(a)(4), substituted

provision that determinations and decisions provided in this Act to

be made by the Administrator or other agency head shall be final

for provision that such determinations and decisions provided in

this subchapter to be made by such official would be final, and

inserted exception for determinations or decisions under sections

253, 253a, and 253b of this title, substituted "Except as provided

in section 253(d)(2) of this title" for "Except as provided in

subsection (b) of this section", and directed the substitution of

"this Act" for "this chapter" after "powers provided by", which

substitution was not capable of literal execution because the

original text read "this title". Consequently, the amendment was

executed by substituting "this Act" for "this title" as the

probable intent of Congress.

Subsecs. (b), (c). Pub. L. 98-369, Sec. 2714(a)(4)(D)-(F),

redesignated subsec. (c) as (b), struck out "paragraphs (11), (12),

(13), or of section 253(c)", and struck out former subsec. (b)

which related to nondelegable powers and powers delegable to

certain persons.

Subsec. (d). Pub. L. 98-369, Sec. 2714(a)(4)(G), struck out

subsec. (d) which related to preservation of data relating to

contracts negotiated pursuant to the former provisions of section

252(c) of this title.

1965 - Subsec. (a). Pub. L. 89-343, Sec. 3, inserted "and except

as provided in section 486(d) of title 40 with respect to the

Administrator".

Subsec. (b). Pub. L. 89-343, Sec. 4, struck out provisions which

made the power of Administrator to make the delegations and

determinations specified in section 252(a) of this title delegable

only to Deputy Administrator or to chief official of any principal

organizational unit of General Services Administration.

1958 - Subsec. (b). Pub. L. 85-800, Sec. 5(a), (b), substituted

"(12)" for "(11)", "(13)" for "(12)", and "(11)" for "(10)" and

struck out "and in section 255(a) of this title" before "shall not

be delegable" in first sentence.

Subsec. (c). Pub. L. 85-800, Sec. 5(a), (c), substituted "(11),

(12), (13), or (14)" for "(10), (11), (12), or (13)", and "255(c)"

for "255(a)".

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-369 applicable with respect to any

solicitation for bids or proposals issued after Mar. 31, 1985, see

section 2751 of Pub. L. 98-369, set out as a note under section 251

of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-End-

-CITE-

41 USC Sec. 258 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 258. Repealed. Pub. L. 103-355, title VII, Sec. 7205, Oct. 13,

1994, 108 Stat. 3382

-MISC1-

Section, acts June 30, 1949, ch. 288, title III, Sec. 308, 63

Stat. 397; July 18, 1984, Pub. L. 98-369, div. B, title VII, Sec.

2714(a)(5), 98 Stat. 1185, related to application of certain laws

to purchases or contracts.

-End-

-CITE-

41 USC Sec. 259 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 259. Definitions

-STATUTE-

As used in this subchapter -

(a) The term "agency head" shall mean the head or any assistant

head of any executive agency, and may at the option of the

Administrator include the chief official of any principal

organizational unit of the General Services Administration.

(b) The term "competitive procedures" means procedures under

which an executive agency enters into a contract pursuant to full

and open competition. Such term also includes -

(1) procurement of architectural or engineering services

conducted in accordance with title IX of this Act; (!1)

(2) the competitive selection of basic research proposals

resulting from a general solicitation and the peer review or

scientific review (as appropriate) of such proposals;

(3) the procedures established by the Administrator for the

multiple awards schedule program of the General Services

Administration if -

(A) participation in the program has been open to all

responsible sources; and

(B) orders and contracts under such procedures result in the

lowest overall cost alternative to meet the needs of the

Government;

(4) procurements conducted in furtherance of section 644 of

title 15 as long as all responsible business concerns that are

entitled to submit offers for such procurements are permitted to

compete; and

(5) a competitive selection of research proposals resulting

from a general solicitation and peer review or scientific review

(as appropriate) solicited pursuant to section 638 of title 15.

section 403 of this title:

(1) The term "procurement".

(2) The term "procurement system".

(3) The term "standards".

(4) The term "full and open competition".

(5) The term "responsible source".

(6) The term "technical data".

(7) The term "major system".

(8) The term "item".

(9) The term "item of supply".

(10) The term "supplies".

(11) The term "commercial item".

(12) The term "nondevelopmental item".

(13) The term "commercial component".

(14) The term "component".

(d)(1) The term "simplified acquisition threshold" has the

meaning provided that term in section 403 of this title, except

that, in the case of any contract to be awarded and performed, or

purchase to be made, outside the United States in support of a

contingency operation or a humanitarian or peacekeeping operation,

the term means an amount equal to two times the amount specified

for that term in section 403 of this title.

(2) In paragraph (1):

(A) The term "contingency operation" has the meaning given such

term in section 101(a) of title 10.

(B) The term "humanitarian or peacekeeping operation" means a

military operation in support of the provision of humanitarian or

foreign disaster assistance or in support of a peacekeeping

operation under chapter VI or VII of the Charter of the United

Nations. The term does not include routine training, force

rotation, or stationing.

(e) The term "Federal Acquisition Regulation" means the Federal

Acquisition Regulation issued pursuant to section 421(c)(1) of this

title.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 309, 63 Stat. 397; July

12, 1952, ch. 703, Sec. 1(h), 66 Stat. 593; Pub. L. 98-369, div. B,

title VII, Sec. 2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L.

98-577, title V, Sec. 504(a)(3), (4), Oct. 30, 1984, 98 Stat. 3086;

Pub. L. 103-355, title I, Sec. 1551, Oct. 13, 1994, 108 Stat. 3298;

Pub. L. 104-201, div. A, title VIII, Sec. 807(b), Sept. 23, 1996,

110 Stat. 2606; Pub. L. 105-85, div. A, title X, Sec. 1073(g)(1),

Nov. 18, 1997, 111 Stat. 1906.)

-REFTEXT-

REFERENCES IN TEXT

This Act, referred to in subsec. (b)(1), is the Federal Property

and Administrative Services Act of 1949, approved June 30, 1949,

ch. 288, 63 Stat. 377, as amended. Title IX of this Act, which was

classified generally to subchapter VI (Sec. 541 et seq.) of chapter

10 of former Title 40, Public Buildings, Property, and Works, was

repealed and reenacted by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304, as chapter 11 (Sec. 1101 et seq.) of

Title 40, Public Buildings, Property, and Works. For disposition of

sections of former Title 40 to revised Title 40, see Table

preceding section 101 of Title 40. For complete classification of

this Act to the Code, see Tables.

-MISC1-

AMENDMENTS

1997 - Subsec. (b)(2). Pub. L. 105-85 struck out "and" at end.

1996 - Subsec. (d). Pub. L. 104-201 designated existing

provisions as par. (1), inserted "or a humanitarian or peacekeeping

operation" after "contingency operation", and added par. (2).

1994 - Subsecs. (c) to (e). Pub. L. 103-355 added subsecs. (c) to

(e) and struck out former subsec. (c) which read as follows: "The

terms 'full and open competition', 'responsible source', 'technical

data', 'major system', 'item', 'item of supply', and 'supplies'

have the same meanings provided such terms in section 403 of this

title."

1984 - Subsec. (b). Pub. L. 98-369 added subsec. (b).

Subsec. (b)(4), (5). Pub. L. 98-577, Sec. 504(a)(3), added pars.

(4) and (5).

Subsec. (c). Pub. L. 98-577, Sec. 504(a)(4), substituted ",

'responsible source', 'technical data', 'major system', 'item',

'item of supply', and 'supplies' have" for "and 'responsible

source' have" before "the meaning".

Pub. L. 98-369 added subsec. (c).

1952 - Subsec. (b). Act July 12, 1952, repealed subsec. (b) which

defined "supplies".

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-369 applicable with respect to any

solicitation for bids or proposals issued after Mar. 31, 1985, see

section 2751 of Pub. L. 98-369, set out as a note under section 251

of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

SMALL BUSINESS ACT

Amendment to this section by section 2711(a)(3) of Pub. L. 98-369

not to affect or supersede the provisions of section 637(a) of

Title 15, Commerce and Trade, see section 2711(c) of Pub. L.

98-369, set out as a note under section 253 of this title.

-CROSS-

DEFINITIONS

The definitions in section 102 of Title 40, Public Buildings,

Property, and Works, apply to this subchapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 6 section 423; title 20

section 1018a.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

41 USC Sec. 260 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 260. Laws not applicable to contracts

-STATUTE-

Sections 5, 8, and 13 of this title shall not apply to the

procurement of property or services made by an executive agency

pursuant to this subchapter. Any provision of law which authorizes

an executive agency (other than an executive agency which is

exempted from the provisions of this subchapter by section 252(a)

of this title), to procure any property or services without

advertising or without regard to said section 5 of this title shall

be construed to authorize the procurement of such property or

services pursuant to the provisions of this subchapter relating to

procedures other than sealed-bid procedures.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 310, 63 Stat. 397; July

12, 1952, ch. 703, Sec. 1(m), (n), 66 Stat. 594; Pub. L. 85-800,

Sec. 6, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89-343, Sec. 5, Nov.

8, 1965, 79 Stat. 1303; Pub. L. 98-369, div. B, title VII, Sec.

2714(a)(6), July 18, 1984, 98 Stat. 1185.)

-MISC1-

AMENDMENTS

1984 - Pub. L. 98-369 substituted "the provisions of this

subchapter relating to procedures other than sealed-bid procedures"

for "section 252(c)(15) of this title without regard to the

advertising requirements of sections 252(c) and 253 of this title".

1965 - Pub. L. 89-343 substituted provisions making sections 5,

8, and 13 of this title inapplicable to the procurement of property

or services made by an executive agency pursuant to this

subchapter, and requiring any provision of law which authorizes an

executive agency (other than an executive agency which is exempted

from the provisions of this subchapter by section 252(a) of this

title) to procure any property or services without advertising or

without regard to said section 5 of this title to be construed to

authorize the procurement of such property or services pursuant to

section 252(c)(15) of this title without regard to the advertising

requirements of section 252(c) and 253 of this title, for

provisions which made sections 5, 6, 6a, and 13 of this title

inapplicable to the procurement of property or services by the

General Services Administration, or within the scope of authority

delegated by the Administrator to any other executive agency, and

which required reference in any Act to the applicability of section

5 of this title to the procurement of property or services by the

General Services Administration or any constituent organization

thereof or any other executive agency delegated authority pursuant

to section 252(a)(2) of this title to be deemed a reference to

section 252(c) of this title.

1958 - Subsec. (b). Pub. L. 85-800 inserted "or any other

executive agency delegated authority pursuant to section 252(a)(2)

of this title".

1952 - Act July 12, 1952, designated existing provisions as

subsec. (a), added subsec. (b), and substituting "property" for

"supplies" in subsec. (a).

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-369 applicable with respect to any

solicitation for bids or proposals issued after Mar. 31, 1985, see

section 2751 of Pub. L. 98-369, set out as a note under section 251

of this title.

EFFECTIVE DATE

Section effective July 1, 1949, see section 605, formerly section

505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act

Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.

-End-

-CITE-

41 USC Sec. 261 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 261. Assignment and delegation of procurement functions and

responsibilities

-STATUTE-

(a) In general

Except to the extent expressly prohibited by another provision of

law, the head of an executive agency may delegate to any other

officer or official of that agency, any power under this

subchapter.

(b) Procurements for or with other agencies

Subject to subsection (a) of this section, to facilitate the

procurement of property and services covered by this subchapter by

each executive agency for any other executive agency, and to

facilitate joint procurement by those executive agencies -

(1) the head of an executive agency may delegate functions and

assign responsibilities relating to procurement to any officer or

employee within such agency;

(2) the heads of two or more executive agencies may by

agreement delegate procurement functions and assign procurement

responsibilities, consistent with section 1535 of title 31 and

regulations issued under section 1074 of the Federal Acquisition

Streamlining Act of 1994, from one executive agency to another of

those executive agencies or to an officer or civilian employee of

another of those executive agencies; and

(3) the heads of two or more executive agencies may establish

joint or combined offices to exercise procurement functions and

responsibilities.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 311, as added Pub. L.

103-355, title I, Sec. 1552, Oct. 13, 1994, 108 Stat. 3299.)

-REFTEXT-

REFERENCES IN TEXT

Section 1074 of the Federal Acquisition Streamling Act of 1994,

referred to in subsec. (b)(2), is section 1074 of Pub. L. 103-355,

which is set out as a note under section 1535 of Title 31, Money

and Finance.

-MISC1-

PRIOR PROVISIONS

A prior section 261, Pub. L. 101-509, title V, Sec. 532, Nov. 5,

1990, 104 Stat. 1470; Pub. L. 102-393, title V, Sec. 529, Oct. 6,

1992, 106 Stat. 1761, related to Internal Revenue Service

procurement of expert services, prior to repeal by Pub. L. 103-355,

Sec. 1055(c).

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 262 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 262. Determinations and decisions

-STATUTE-

(a) Individual or class determinations and decisions authorized

Determinations and decisions required to be made under this

subchapter by the head of an executive agency may be made for an

individual purchase or contract or, except to the extent expressly

prohibited by another provision of law, for a class of purchases or

contracts. Such determinations and decisions are final.

(b) Written findings required

(1) Each determination under section 255(d) of this title or

section 254d(c)(2)(B) of this title shall be based on a written

finding by the person making the determination or decision. The

finding shall set out facts and circumstances that support the

determination or decision.

(2) Each finding referred to in paragraph (1) is final.

(3) The head of an executive agency shall maintain for a period

of not less than 6 years a copy of each finding referred to in

paragraph (1) that is made by a person in that executive agency.

The period begins on the date of the determination or decision to

which the finding relates.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 312, as added Pub. L.

103-355, title I, Sec. 1553, Oct. 13, 1994, 108 Stat. 3300.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 263 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 263. Performance based management: acquisition programs

-STATUTE-

(a) Congressional policy

It is the policy of Congress that the head of each executive

agency should achieve, on average, 90 percent of the cost,

performance, and schedule goals established for major acquisition

programs of the agency.

(b) Establishment of goals

(1) The head of each executive agency shall approve or define the

cost, performance, and schedule goals for major acquisition

programs of the agency.

(2) The chief financial officer of an executive agency shall

evaluate the cost goals proposed for each major acquisition program

of the agency.

Whenever it is necessary to do so in order to implement the

policy set out in subsection (a) of this section, the head of an

executive agency shall -

(1) determine whether there is a continuing need for programs

that are significantly behind schedule, over budget, or not in

compliance with performance or capability requirements; and

(2) identify suitable actions to be taken, including

termination, with respect to such programs.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 313, as added Pub. L.

103-355, title V, Sec. 5051(a), Oct. 13, 1994, 108 Stat. 3351;

amended Pub. L. 105-85, div. A, title VIII, Sec. 851(a), Nov. 18,

1997, 111 Stat. 1851.)

-MISC1-

AMENDMENTS

1997 - Subsec. (a). Pub. L. 105-85 amended heading and text of

subsec. (a) generally. Prior to amendment, text read as follows:

"It is the policy of Congress that the head of each executive

agency should achieve, on average, 90 percent of the cost and

schedule goals established for major and nonmajor acquisition

programs of the agency without reducing the performance or

capabilities of the items being acquired."

ENHANCED SYSTEM OF PERFORMANCE INCENTIVES

Section 5051(c) of Pub. L. 103-355 provided that: "Within one

year after the date of the enactment of this Act [Oct. 13, 1994],

the Deputy Director for Management of the Office of Management and

Budget, in consultation with appropriate officials in other

departments and agencies of the Federal Government, shall, to the

maximum extent consistent with applicable law -

"(1) establish policies and procedures for the heads of such

departments and agencies to designate acquisition positions and

manage employees (including the accession, education, training

and career development of employees) in the designated

acquisition positions; and

"(2) review the incentives and personnel actions available to

the heads of departments and agencies of the Federal Government

for encouraging excellence in the acquisition workforce of the

Federal Government and provide an enhanced system of incentives

for the encouragement of excellence in such workforce which -

"(A) relates pay to performance (including the extent to

which the performance of personnel in such workforce

contributes to achieving the cost goals, schedule goals, and

performance goals established for acquisition programs pursuant

to section 313(b) of the Federal Property and Administrative

Services Act of 1949, as added by subsection (a) [41 U.S.C.

263(b)]); and

"(B) provides for consideration, in personnel evaluations and

promotion decisions, of the extent to which the performance of

personnel in such workforce contributes to achieving such cost

goals, schedule goals, and performance goals."

RECOMMENDED LEGISLATION

Section 5051(d) of Pub. L. 103-355 provided that: "Not later than

one year after the date of the enactment of this Act [Oct. 13,

1994], the Administrator for Federal Procurement Policy shall

submit to Congress any recommended legislation that the Secretary

considers necessary to carry out section 313 of the Federal

Property and Administrative Services Act of 1949, as added by

subsection (a) [41 U.S.C. 263], and otherwise to facilitate and

enhance management of Federal Government acquisition programs and

the acquisition workforce of the Federal Government on the basis of

performance."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 405, 433 of this title.

-End-

-CITE-

41 USC Sec. 264 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 264. Relationship of commercial item provisions to other

provisions of law

-STATUTE-

(a) Applicability of subchapter

Unless otherwise specifically provided, nothing in this section,

section 264a of this title, or section 264b of this title shall be

construed as providing that any other provision of this subchapter

relating to procurement is inapplicable to the procurement of

commercial items.

(b) List of laws inapplicable to contracts for acquisition of

commercial items

No contract for the procurement of a commercial item entered into

by the head of an executive agency shall be subject to any law

properly listed in the Federal Acquisition Regulation (pursuant to

section 430 of this title).

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 314, as added Pub. L.

103-355, title VIII, Sec. 8201, Oct. 13, 1994, 108 Stat. 3394.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

REGULATIONS

Section 8002 of Pub. L. 103-355 provided that:

"(a) In General. - The Federal Acquisition Regulation shall

provide regulations to implement paragraphs (12) through (15) of

section 4 of the Office of Federal Procurement Policy Act [41

U.S.C. 403(12)-(15)], chapter 140 of title 10, United States Code,

and sections 314 through 314B of the Federal Property and

Administrative Services Act of 1949 [41 U.S.C. 264-264b].

"(b) Contract Clauses. - (1) The regulations prescribed under

subsection (a) shall contain a list of contract clauses to be

included in contracts for the acquisition of commercial end items.

Such list shall, to the maximum extent practicable, include only

those contract clauses -

"(A) that are required to implement provisions of law or

executive orders applicable to acquisitions of commercial items

or commercial components, as the case may be; or

"(B) that are determined to be consistent with standard

commercial practice.

"(2) Such regulations shall provide that a prime contractor shall

not be required by the Federal Government to apply to any of its

divisions, subsidiaries, affiliates, subcontractors, or suppliers

that are furnishing commercial items any contract clause except

those -

"(A) that are required to implement provisions of law or

executive orders applicable to subcontractors furnishing

commercial items or commercial components, as the case may be; or

"(B) that are determined to be consistent with standard

commercial practice.

"(3) To the maximum extent practicable, only the contract clauses

listed pursuant to paragraph (1) may be used in a contract, and

only the contract clauses referred to in paragraph (2) may be

required to be used in a subcontract, for the acquisition of

commercial items or commercial components by or for an executive

agency.

"(4) The Federal Acquisition Regulation shall provide standards

and procedures for waiving the use of contract clauses required

pursuant to paragraph (1), other than those required by law,

including standards for determining the cases in which a waiver is

appropriate.

"(5) For purposes of this subsection, the term 'subcontract'

includes a transfer of commercial items between divisions,

subsidiaries, or affiliates of a contractor or subcontractor.

"(c) Market Acceptance. - (1) The Federal Acquisition Regulation

shall provide that under appropriate conditions the head of an

executive agency may require offerors to demonstrate that the items

offered -

"(A) have either -

"(i) achieved commercial market acceptance; or

"(ii) been satisfactorily supplied to an executive agency

under current or recent contracts for the same or similar

requirements; and

"(B) otherwise meet the item description, specifications, or

other criteria prescribed in the public notice and solicitation

relating to the contract.

"(2) The Federal Acquisition Regulation shall provide guidance to

ensure that the criteria for determining commercial market

acceptance include the consideration of -

"(A) the minimum needs of the executive agency concerned; and

"(B) the entire relevant commercial market, including small

businesses.

"(d) Use of Firm, Fixed Price Contracts. - The Federal

Acquisition Regulation shall include, for acquisitions of

commercial items -

"(1) a requirement that firm, fixed price contracts or fixed

price with economic price adjustment contracts be used to the

maximum extent practicable; and

"(2) a prohibition on use of cost type contracts.

"(e) Contract Quality Requirements. - The regulations prescribed

under subsection (a) shall include provisions that -

"(1) permit, to the maximum extent practicable, a contractor

under a commercial items acquisition to use the existing quality

assurance system of the contractor as a substitute for compliance

with an otherwise applicable requirement for the Government to

inspect or test the commercial items before the contractor's

tender of those items for acceptance by the Government;

"(2) require that, to the maximum extent practicable, the

executive agency take advantage of warranties (including extended

warranties) offered by offerors of commercial items and use such

warranties for the repair and replacement of commercial items;

and

"(3) set forth guidance regarding the use of past performance

of commercial items and sources as a factor in contract award

decisions.

"(f) Defense Contract Clauses. - (1) Section 824(b) of the

National Defense Authorization Act for Fiscal Years 1990 and 1991

(Public Law 101-189; [former] 10 U.S.C. 2325 note) shall cease to

be effective on the date on which the regulations implementing this

section become effective [Oct. 1, 1995, see 60 F.R. 48231, Sept.

18, 1995].

"(2) Notwithstanding subsection (b), a contract of the Department

of Defense entered into before the date on which section 824(b)

ceases to be effective under paragraph (1), and a subcontract

entered into before such date under such a contract, may include

clauses developed pursuant to paragraphs (2) and (3) of section

824(b) of the National Defense Authorization Act for Fiscal Years

1990 and 1991 (Public Law 101-189; [former] 10 U.S.C. 2325 note)."

PROVISIONS NOT AFFECTED BY TITLE VIII OF PUB. L. 103-355

Section 8304 of title VIII of Pub. L. 103-355 provided that:

"Nothing in this title [enacting this section, sections 264a, 264b,

and 430 of this title, sections 2375 to 2377 of Title 10, Armed

Forces, and section 334 of former Title 40, Public Buildings,

Property, and Works, now section 3707 of Title 40, amending

sections 57, 58, 253g, 254, 403, 416, 418, 422, 423, and 701 of

this title, sections 2306, 2320, 2321, 2384, 2393, 2397, 2397b,

2397c, 2402, 2408, and 2410b of Title 10, section 1368 of Title 33,

Navigation and Navigable Waters, and section 40118 of Title 49,

Transportation, repealing section 424 of this title and section

2325 of Title 10, enacting provisions set out as notes under this

section, sections 264b and 430 of this title, and section 7606 of

Title 42, The Public Health and Welfare, and amending provisions

set out as notes under sections 2301 and 2327 of Title 10] shall be

construed as modifying or superseding, or as intended to impair or

restrict, authorities or responsibilities under -

"(1) section 2323 of title 10, United States Code, or section

7102 of the Federal Acquisition Streamlining Act of 1994 [Pub. L.

103-355, 15 U.S.C. 644 note];

"(2) the Brooks Automatic Data Processing Act (section 111 of

the Federal Property and Administrative Services Act of 1949

([former] 40 U.S.C. 759));

"(3) Brooks Architect-Engineers Act (title IX of the Federal

Property and Administrative Services Act of 1949 (40 U.S.C. 541

et seq.) [now 40 U.S.C. 1101-1104]);

"(4) subsections (a) and (d) of section 8 of the Small Business

Act (15 U.S.C. 637(a) and (d)); or

"(5) the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c)."

-End-

-CITE-

41 USC Sec. 264a 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 264a. Definitions relating to procurement of commercial items

-STATUTE-

As used in this subchapter, the terms "commercial item",

"nondevelopmental item", "component", and "commercial component"

have the meanings provided in section 403 of this title.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 314A, as added Pub. L.

103-355, title VIII, Sec. 8202, Oct. 13, 1994, 108 Stat. 3394;

amended Pub. L. 104-106, div. D, title XLIII, Sec. 4321(e)(7), Feb.

10, 1996, 110 Stat. 675.)

-MISC1-

AMENDMENTS

1996 - Pub. L. 104-106 inserted "relating to procurement of

commercial items" after "Definitions" in section catchline.

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 264 of this title.

-End-

-CITE-

41 USC Sec. 264b 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 264b. Preference for acquisition of commercial items

-STATUTE-

(a) Preference

The head of each executive agency shall ensure that, to the

maximum extent practicable -

(1) requirements of the executive agency with respect to a

procurement of supplies or services are stated in terms of -

(A) functions to be performed;

(B) performance required; or

(2) such requirements are defined so that commercial items or,

to the extent that commercial items suitable to meet the

executive agency's needs are not available, nondevelopmental

items other than commercial items, may be procured to fulfill

such requirements; and

(3) offerors of commercial items and nondevelopmental items

other than commercial items are provided an opportunity to

compete in any procurement to fill such requirements.

(b) Implementation

The head of each executive agency shall ensure that procurement

officials in that executive agency, to the maximum extent

practicable -

(1) acquire commercial items or nondevelopmental items other

than commercial items to meet the needs of the executive agency;

(2) require prime contractors and subcontractors at all levels

under the executive agency contracts to incorporate commercial

items or nondevelopmental items other than commercial items as

components of items supplied to the executive agency;

(3) modify requirements in appropriate cases to ensure that the

requirements can be met by commercial items or, to the extent

that commercial items suitable to meet the executive agency's

needs are not available, nondevelopmental items other than

commercial items;

(4) state specifications in terms that enable and encourage

bidders and offerors to supply commercial items or, to the extent

that commercial items suitable to meet the executive agency's

needs are not available, nondevelopmental items other than

commercial items in response to the executive agency

solicitations;

(5) revise the executive agency's procurement policies,

practices, and procedures not required by law to reduce any

impediments in those policies, practices, and procedures to the

acquisition of commercial items; and

(6) require training of appropriate personnel in the

acquisition of commercial items.

(1) The head of an executive agency shall conduct market research

appropriate to the circumstances -

(A) before developing new specifications for a procurement by

that executive agency; and

(B) before soliciting bids or proposals for a contract in

excess of the simplified acquisition threshold.

(2) The head of an executive agency shall use the results of

market research to determine whether there are commercial items or,

to the extent that commercial items suitable to meet the executive

agency's needs are not available, nondevelopmental items other than

commercial items available that -

(A) meet the executive agency's requirements;

(B) could be modified to meet the executive agency's

requirements; or

requirements were modified to a reasonable extent.

(3) In conducting market research, the head of an executive

agency should not require potential sources to submit more than the

minimum information that is necessary to make the determinations

required in paragraph (2).

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 314B, as added Pub. L.

103-355, title VIII, Sec. 8203, Oct. 13, 1994, 108 Stat. 3394.)

-MISC1-

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

COMPTROLLER GENERAL REVIEW OF FEDERAL GOVERNMENT USE OF MARKET

RESEARCH

Section 8305 of Pub. L. 103-355 provided that:

"(a) Report Required. - Not later than 2 years after the date of

the enactment of this Act [Oct. 13, 1994], the Comptroller General

of the United States shall submit to the Congress a report on the

use of market research by the Federal Government in support of the

procurement of commercial items and nondevelopmental items.

"(b) Content of Report. - The report shall include the following:

"(1) A review of existing Federal Government market research

efforts to gather data concerning commercial and other

nondevelopmental items.

"(2) A review of the feasibility of creating a Government-wide

data base for storing, retrieving, and analyzing market data,

including use of existing Federal Government resources.

"(3) Any recommendations for changes in law or regulations that

the Comptroller General considers appropriate."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 264 of this title; title

15 section 205l.

-End-

-CITE-

41 USC Sec. 265 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 265. Contractor employees: protection from reprisal for

disclosure of certain information

-STATUTE-

(a) Prohibition of reprisals

An employee of a contractor may not be discharged, demoted, or

otherwise discriminated against as a reprisal for disclosing to a

Member of Congress or an authorized official of an executive agency

or the Department of Justice information relating to a substantial

violation of law related to a contract (including the competition

for or negotiation of a contract).

(b) Investigation of complaints

A person who believes that the person has been subjected to a

reprisal prohibited by subsection (a) of this section may submit a

complaint to the Inspector General of the executive agency. Unless

the Inspector General determines that the complaint is frivolous,

the Inspector General shall investigate the complaint and, upon

completion of such investigation, submit a report of the findings

of the investigation to the person, the contractor concerned, and

the head of the agency. In the case of an executive agency that

does not have an Inspector General, the duties of the Inspector

General under this section shall be performed by an official

designated by the head of the executive agency.

(1) If the head of an executive agency determines that a

contractor has subjected a person to a reprisal prohibited by

subsection (a) of this section, the head of the executive agency

may take one or more of the following actions:

(A) Order the contractor to take affirmative action to abate

the reprisal.

(B) Order the contractor to reinstate the person to the

position that the person held before the reprisal, together with

the compensation (including back pay), employment benefits, and

other terms and conditions of employment that would apply to the

person in that position if the reprisal had not been taken.

to the aggregate amount of all costs and expenses (including

attorneys' fees and expert witnesses' fees) that were reasonably

incurred by the complainant for, or in connection with, bringing

the complaint regarding the reprisal, as determined by the head

of the executive agency.

(2) Whenever a person fails to comply with an order issued under

paragraph (1), the head of the executive agency shall file an

action for enforcement of such order in the United States district

court for a district in which the reprisal was found to have

occurred. In any action brought under this paragraph, the court may

grant appropriate relief, including injunctive relief and

compensatory and exemplary damages.

(3) Any person adversely affected or aggrieved by an order issued

under paragraph (1) may obtain review of the order's conformance

with this subsection, and any regulations issued to carry out this

section, in the United States court of appeals for a circuit in

which the reprisal is alleged in the order to have occurred. No

petition seeking such review may be filed more than 60 days after

issuance of the order by the head of the agency. Review shall

conform to chapter 7 of title 5.

(d) Construction

Nothing in this section may be construed to authorize the

discharge of, demotion of, or discrimination against an employee

for a disclosure other than a disclosure protected by subsection

(a) of this section or to modify or derogate from a right or remedy

otherwise available to the employee.

(e) Definitions

In this section:

(1) The term "contract" means a contract awarded by the head of

an executive agency.

(2) The term "contractor" means a person awarded a contract

with an executive agency.

(3) The term "Inspector General" means an Inspector General

appointed under the Inspector General Act of 1978.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 315, as added Pub. L.

103-355, title VI, Sec. 6006, Oct. 13, 1994, 108 Stat. 3365;

amended Pub. L. 104-106, div. D, title XLIII, Sec. 4321(e)(8), Feb.

10, 1996, 110 Stat. 675.)

-REFTEXT-

REFERENCES IN TEXT

The Inspector General Act of 1978, referred to in subsec. (e)(3),

is Pub. L. 95-452, Oct. 12, 1978, 92 Stat. 1101, as amended, which

is set out in the Appendix to Title 5, Government Organization and

Employees.

-MISC1-

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-106 substituted "Inspector

General" for "inspector general" after "does not have an" and after

"the duties of the".

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 266 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 266. Merit-based award of grants for research and development

-STATUTE-

(a) Policy

It is the policy of Congress that an executive agency should not

be required by legislation to award a new grant for research,

development, test, or evaluation to a non-Federal Government

entity. It is further the policy of Congress that any program,

project, or technology identified in legislation be awarded through

merit-based selection procedures.

(b) Rule of construction

A provision of law may not be construed as requiring a new grant

to be awarded to a specified non-Federal Government entity unless

that provision of law -

(1) specifically refers to this subsection;

(2) specifically identifies the particular non-Federal

Government entity involved; and

(3) specifically states that the award to that entity is

required by such provision of law in contravention of the policy

set forth in subsection (a) of this section.

For purposes of this section, a grant is a new grant unless the

work provided for in the grant is a continuation of the work

performed by the specified entity under a preceding grant.

(d) Inapplicability to certain grants

This section shall not apply with respect to any grant that calls

upon the National Academy of Sciences to investigate, examine, or

experiment upon any subject of science or art of significance to an

executive agency and to report on such matters to Congress or any

agency of the Federal Government.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 316, as added Pub. L.

103-355, title VII, Sec. 7203(b)(2), Oct. 13, 1994, 108 Stat. 3381;

amended Pub. L. 104-106, div. D, title XLIII, Sec. 4321(e)(9), Feb.

10, 1996, 110 Stat. 675.)

-MISC1-

AMENDMENTS

1996 - Pub. L. 104-106 made technical amendment to section

catchline in original.

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE

For effective date and applicability of section, see section

10001 of Pub. L. 103-355, set out as an Effective Date of 1994

Amendment note under section 251 of this title.

-End-

-CITE-

41 USC Sec. 266a 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER IV - PROCUREMENT PROVISIONS

-HEAD-

Sec. 266a. Share-in-savings contracts

-STATUTE-

(a) Authority to enter into share-in-savings contracts

(1) The head of an executive agency may enter into a

share-in-savings contract for information technology (as defined in

section 11101(6) of title 40) in which the Government awards a

contract to improve mission-related or administrative processes or

to accelerate the achievement of its mission and share with the

contractor in savings achieved through contract performance.

(2)(A) Except as provided in subparagraph (B), a share-in-savings

contract shall be awarded for a period of not more than five years.

(B) A share-in-savings contract may be awarded for a period

greater than five years, but not more than 10 years, if the head of

the agency determines in writing prior to award of the contract

that -

(i) the level of risk to be assumed and the investment to be

undertaken by the contractor is likely to inhibit the government

from obtaining the needed information technology competitively at

a fair and reasonable price if the contract is limited in

duration to a period of five years or less; and

(ii) usage of the information technology to be acquired is

likely to continue for a period of time sufficient to generate

reasonable benefit for the government.

(3) Contracts awarded pursuant to the authority of this section

shall, to the maximum extent practicable, be performance-based

contracts that identify objective outcomes and contain performance

standards that will be used to measure achievement and milestones

that must be met before payment is made.

(4) Contracts awarded pursuant to the authority of this section

shall include a provision containing a quantifiable baseline that

is to be the basis upon which a savings share ratio is established

that governs the amount of payment a contractor is to receive under

the contract. Before commencement of performance of such a

contract, the senior procurement executive of the agency shall

determine in writing that the terms of the provision are

quantifiable and will likely yield value to the Government.

(5)(A) The head of the agency may retain savings realized through

the use of a share-in-savings contract under this section that are

in excess of the total amount of savings paid to the contractor

under the contract, but may not retain any portion of such savings

that is attributable to a decrease in the number of civilian

employees of the Federal Government performing the function. Except

as provided in subparagraph (B), savings shall be credited to the

appropriation or fund against which charges were made to carry out

the contract and shall be used for information technology.

(B) Amounts retained by the agency under this subsection shall -

(i) without further appropriation, remain available until

expended; and

(ii) be applied first to fund any contingent liabilities

associated with share-in-savings procurements that are not fully

funded.

(b) Cancellation and termination

(1) If funds are not made available for the continuation of a

share-in-savings contract entered into under this section in a

subsequent fiscal year, the contract shall be canceled or

terminated. The costs of cancellation or termination may be paid

out of -

(A) appropriations available for the performance of the

contract;

(B) appropriations available for acquisition of the information

technology procured under the contract, and not otherwise

obligated; or

cancellation or termination, subject to the limitations in

paragraph (3).

(2) The amount payable in the event of cancellation or

termination of a share-in-savings contract shall be negotiated with

the contractor at the time the contract is entered into.

(3)(A) Subject to subparagraph (B), the head of an executive

agency may enter into share-in-savings contracts under this section

in any given fiscal year even if funds are not made specifically

available for the full costs of cancellation or termination of the

contract if funds are available and sufficient to make payments

with respect to the first fiscal year of the contract and the

following conditions are met regarding the funding of cancellation

and termination liability:

(i) The amount of unfunded contingent liability for the

contract does not exceed the lesser of -

(I) 25 percent of the estimated costs of a cancellation or

termination; or

(II) $5,000,000.

(ii) Unfunded contingent liability in excess of $1,000,000 has

been approved by the Director of the Office of Management and

Budget or the Director's designee.

(B) The aggregate number of share-in-savings contracts that may

be entered into under subparagraph (A) by all executive agencies to

which this subchapter (!1) applies in a fiscal year may not exceed

5 in each of fiscal years 2003, 2004, and 2005.

In this section:

(1) The term "contractor" means a private entity that enters

into a contract with an agency.

(2) The term "savings" means -

(A) monetary savings to an agency; or

(B) savings in time or other benefits realized by the agency,

including enhanced revenues (other than enhanced revenues from

the collection of fees, taxes, debts, claims, or other amounts

owed the Federal Government).

(3) The term "share-in-savings contract" means a contract under

which -

(A) a contractor provides solutions for -

(i) improving the agency's mission-related or

administrative processes; or

(ii) accelerating the achievement of agency missions; and

(B) the head of the agency pays the contractor an amount

equal to a portion of the savings derived by the agency from -

(i) any improvements in mission-related or administrative

processes that result from implementation of the solution; or

(ii) acceleration of achievement of agency missions.

(d) Termination

No share-in-savings contracts may be entered into under this

section after September 30, 2005.

-SOURCE-

(June 30, 1949, ch. 288, title III, Sec. 317, as added Pub. L.

107-347, title II, Sec. 210(b), Dec. 17, 2002, 116 Stat. 2934.)

-REFTEXT-

REFERENCES IN TEXT

The words "this subchapter", referred to in subsec. (b)(3)(B),

were in the original "this chapter" and have been translated as if

they read "this title" in the original, meaning title III of act

June 30, 1949, ch. 288, to reflect the probable intent of Congress.

-MISC1-

EFFECTIVE DATE

Section effective 120 days after Dec. 17, 2002, see section

402(a) of Pub. L. 107-347, set out as a note under section 3601 of

Title 44, Public Printing and Documents.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

41 USC SUBCHAPTER V - FOREIGN EXCESS PROPERTY 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER V - FOREIGN EXCESS PROPERTY

-HEAD-

SUBCHAPTER V - FOREIGN EXCESS PROPERTY

-End-

-CITE-

41 USC Secs. 271 to 274 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER V - FOREIGN EXCESS PROPERTY

-HEAD-

Secs. 271 to 274. Transferred

-COD-

CODIFICATION

Section 271, act June 30, 1949, ch. 288, title IV, Sec. 401, 63

Stat. 397, which related to disposal of foreign excess property,

was transferred to section 511 of former Title 40, Public

Buildings, Property, and Works, and was repealed and reenacted as

section 701(b)(1), (b)(2)(B), (c) of Title 40, Public Buildings,

Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304.

Section 272, act June 30, 1949, ch. 288, title IV, Sec. 402, 63

Stat. 398, which related to methods and terms of disposal, was

transferred to section 512 of former Title 40, and was repealed and

reenacted as sections 702 to 704 of Title 40, Public Buildings,

Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,

2002, 116 Stat. 1062, 1304.

Section 273, act June 30, 1949, ch. 288, title IV, Sec. 403, 63

Stat. 398, which related to proceeds from disposals, was

transferred to section 513 of former Title 40, and was repealed and

reenacted as section 705 of Title 40, Public Buildings, Property,

and Works, by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21, 2002, 116

Stat. 1062, 1304.

Section 274, act June 30, 1949, ch. 288, title IV, Sec. 404, 63

Stat. 398, which related to general provisions, was transferred to

section 514 of former Title 40, and was repealed and reenacted as

section 701(a), (b)(1), (2)(A), (3), (4) of Title 40, Public

Buildings, Property, and Works, by Pub. L. 107-217, Secs. 1, 6(b),

Aug. 21, 2002, 116 Stat. 1062, 1304.

-End-

-CITE-

41 USC SUBCHAPTER VI - FEDERAL RECORD MANAGEMENT 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER VI - FEDERAL RECORD MANAGEMENT

-HEAD-

SUBCHAPTER VI - FEDERAL RECORD MANAGEMENT

-End-

-CITE-

41 USC Secs. 281 to 291 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 4 - PROCUREMENT PROCEDURES

SUBCHAPTER VI - FEDERAL RECORD MANAGEMENT

-HEAD-

Secs. 281 to 291. Transferred

-COD-

CODIFICATION

Section 281, acts June 30, 1949, ch. 288, title V, Sec. 502;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

custody and control of property, was transferred to section 392 of

former Title 44, Public Printing and Documents.

Section 282, acts June 30, 1949, ch. 288, title V, Sec. 503;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

National Historical Publications Commission, was transferred to

section 393 of former Title 44.

Section 283, acts June 30, 1949, ch. 288, title V, Sec. 504;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

establishment of Federal Records Council, was transferred to

section 394 of former Title 44.

Section 284, acts June 30, 1949, ch. 288, title V, Sec. 505;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

records management by Administrator, was transferred to section 395

of former Title 44.

Section 285, acts June 30, 1949, ch. 288, title V, Sec. 506;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

records management by agency heads, was transferred to section 396

of former Title 44.

Section 286, acts June 30, 1949, ch. 288, title V, Sec. 507;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

Archival administration, was transferred to section 397 of former

Title 44.

Section 287, acts June 30, 1949, ch. 288, title V, Sec. 508;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

reports, was transferred to section 398 of former Title 44.

Section 288, acts June 30, 1949, ch. 288, title V, Sec. 509;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

legal status of reproductions; official seal; fees for copies and

reproductions, was transferred to section 399 of former Title 44.

Section 289, acts June 30, 1949, ch. 288, title V, Sec. 510;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

limitation on liability, was transferred to section 400 of former

Title 44.

Section 290, acts June 30, 1949, ch. 288, title V, Sec. 511;

Sept. 5, 1950, ch. 849, Sec. 6(d), 64 Stat. 583, which related to

definitions, was transferred to section 401 of former Title 44.

Section 291, act Aug. 2, 1946, ch. 753, title I, Sec. 140, 60

Stat. 833, which related to transfer of records of Congress, was

transferred to section 402 of former Title 44.

Sections 392 to 402 of former Title 44 are covered by chapter 21

(Sec. 2101 et seq.), chapter 25 (Sec. 2501 et seq.), chapter 27

(Sec. 2701 et seq.), chapter 29 (Sec. 2901 et seq.), and chapter 31

(Sec. 3101 et seq.) of Title 44, Public Printing and Documents.

-End-

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