-CITE- 41 USC CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -MISC1- Sec. 401, 402. Repealed. 403. Definitions. 404. Establishment of Office of Federal Procurement Policy; appointment of Administrator. 405. Authority and functions of the Administrator. (a) Development of procurement policy; leadership. (b) Government-wide procurement regulations. (c) Noninterference with executive agencies. (d) Enumeration of included functions. (e) Consultation; assistance of existing executive agencies; advisory committees and interagency groups. (f) Oversight of regulations promulgated by other agencies relating to procurement. (g) Assignment, delegation, or transfer of functions prohibited. (h) Real property procurement; Office of Management and Budget. (i) Recipients of Federal grants or assistance. (j) Policy regarding consideration of contractor past performance. (k) Annual reporting requirement. 405a. Uniform Federal procurement regulations and procedures. 405b. Conflict of interest standards for individuals providing consulting services. (a) Issuance of policy and regulations. (b) Services subject to regulations. (c) Report to Congress by Comptroller General on effectiveness of regulations. (d) Intelligence activities exemption; annual report by Director of Central Intelligence. (e) Adverse effect determination by President prior to issuance of regulations; report to Congressional committees; voiding of regulations requirement. 406. Administrative powers. 407. Repealed. 408. Applicability of existing laws. 409. Repealed. 410. Authorization of appropriations. 411. Delegation of authority by Administrator. 412. Comptroller General's access to information from Administrator; rule making procedure. 413. Tests of innovative procurement methods and procedures. 414. Chief Acquisition Officers and senior procurement executives. (a) Establishment of agency Chief Acquisition Officers. (b) Authority and functions of agency Chief Acquisition Officers. (c) Senior procurement executive. 414a. Personnel evaluation. 414b. Chief Acquisition Officers Council. (a) Establishment. (b) Membership. (c) Leadership; support. (d) Principal forum. (e) Functions. 415. Repealed. 416. Procurement notice. (a) Covered executive agency activities; publication of notice; time limitations. (b) Contents of notice. (c) Exempted, etc., activities of executive agency. (d) Availability of complete solicitation package; payment of fee. 417. Record requirements. (a) Establishment and maintenance of computer file by executive agency; time period; coverage. (b) Contents. (c) Record categories. (d) Transmission and data system entry of information. 417a. Procurement data. (a) Reporting. (b) Definitions. 418. Advocates for competition. (a) Establishment, designation, etc., in executive agency. (b) Duties and functions. (c) Responsibilities. 418a. Rights in technical data. (a) Regulations; legitimate proprietary interest of United States. (b) Unlimited rights; technical data; developed with Federal funds; unrestricted, royalty-free right to use; rights under law. (c) Factors; regulations. (d) Provisions; contracts; regulations. 418b. Publication of proposed regulations. (a) Effective date; procurement policy, regulations, procedure or form; publication in Federal Register. (b) Publication in Federal Register. (c) Notice; proposed policy; contents. (d) Waiver. 419. Contracting functions performed by Federal personnel. (a) Limitation on payment for advisory and assistance services. (b) Covered personnel. (c) Rule of construction. 420. Repealed. 421. Federal Acquisition Regulatory Council. (a) Establishment. (b) Membership. (c) Functions. (d) Additional responsibilities of membership. (e) Governing policies. (f) General authority with respect to FAR. 422. Cost Accounting Standards Board. (a) Establishment; membership; terms. (b) Senior staff. (c) Other staff. (d) Detailed and temporary personnel. (e) Compensation. (f) Cost accounting standards authority. (g) Requirements for standards. (h) Implementing regulations. (i) Omitted. (j) Effect on other standards and regulations. (k) Examinations. (l) Authorization of appropriations. 423. Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information. (a) Prohibition on disclosing procurement information. (b) Prohibition on obtaining procurement information. (c) Actions required of procurement officers when contacted by offerors regarding non-Federal employment. (d) Prohibition on former official's acceptance of compensation from contractor. (e) Penalties and administrative actions. (f) Definitions. (g) Limitation on protests. (h) Savings provisions. 424. Repealed. 425. Contract clauses and certifications. (a) Nonstandard contract clauses. (b) Construction of certification requirements. (c) Prohibition on certification requirements. 426. Use of electronic commerce in Federal procurement. (a) In general. (b) Applicable standards. (c) Agency procedures. (d) Implementation. (e) Report. (f) "Electronic commerce" defined. 426a. Repealed. 427. Simplified acquisition procedures. (a) Requirement. (b) Prohibition on dividing purchases. (c) Promotion of competition required. (d) Consideration of offers timely received. (e) Interim reporting rule. (f) Special rules for commercial items. 428. Procedures applicable to purchases below micro-purchase threshold. (a) Requirements. (b) Exclusion for micro-purchases. (c) Purchases without competitive quotations. (d) Equitable distribution. (e) Implementation through FAR. (f) Micro-purchase threshold defined. 428a. Special emergency procurement authority. (a) Applicability. (b) Increased thresholds. (c) Increased limitation on use of simplified acquisition procedures. (d) Commercial items authority. (e) Contingency operation defined. 429. List of laws inapplicable to contracts not greater than simplified acquisition threshold in Federal Acquisition Regulation. (a) List of inapplicable provisions of law. (b) Covered law. (c) Petition. 430. List of laws inapplicable to procurements of commercial items in Federal Acquisition Regulation. (a) List of inapplicable provisions of law. (b) Subcontracts. (c) Covered law. (d) Petition. 431. Commercially available off-the-shelf item acquisitions: lists of inapplicable laws in Federal Acquisition Regulation. (a) Lists of inapplicable provisions of law. (b) Covered law. (c) "Commercially available off-the-shelf item" defined. 431a. Inflation adjustment of acquisition-related dollar thresholds. (a) Requirement for periodic adjustment. (b) Adjustments effective upon publication. (c) Acquisition-related dollar thresholds. (d) Excluded thresholds. (e) Calculation of adjustments. (f) Petition for inclusion of omitted threshold. 432. Value engineering. (a) In general. (b) "Value engineering" defined. 433. Acquisition workforce. (a) Applicability. (b) Management policies. (c) Senior procurement executive authorities and responsibilities. (d) Management information systems. (e) Applicability to acquisition workforce. (f) Career development. (g) Qualification requirements. (h) Education and training. 434. Modular contracting for information technology. (a) In general. (b) Modular contracting described. (c) Implementation. 435. Levels of compensation of certain contractor personnel not allowable as costs under certain contracts. (a) Determination required. (b) Benchmark compensation amount. (c) Definitions. 436. Protection of constitutional rights of contractors. (a) Prohibition. (b) Construction. 437. Incentives for efficient performance of services contracts. (a) Incentive for use of performance-based services contracts. (b) Regulations. (c) Report. (d) Expiration. 438. Civilian Board of Contract Appeals. (a) Board established. (b) Membership. (c) Functions. -End- -CITE- 41 USC Secs. 401, 402 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Secs. 401, 402. Repealed. Pub. L. 104-106, div. D, title XLIII, Sec. 4305(a)(2), Feb. 10, 1996, 110 Stat. 665 -MISC1- Section 401, Pub. L. 93-400, Sec. 2, Aug. 30, 1974, 88 Stat. 796; Pub. L. 96-83, Sec. 2, Oct. 10, 1979, 93 Stat. 648; Pub. L. 98-191, Sec. 3, Dec. 1, 1983, 97 Stat. 1325; Pub. L. 100-679, Sec. 2(a), Nov. 17, 1988, 102 Stat. 4055; Pub. L. 103-355, title I, Sec. 1091(a), Oct. 13, 1994, 108 Stat. 3272, stated policy of United States Government relating to procurement of property and services. Section 402, Pub. L. 93-400, Sec. 3, Aug. 30, 1974, 88 Stat. 796; Pub. L. 100-679, Sec. 2(b), Nov. 17, 1988, 102 Stat. 4055, stated findings of Congress and purpose of this chapter. EFFECTIVE DATE OF REPEAL For effective date and applicability of repeal, see section 4401 of Pub. L. 104-106, set out as an Effective Date of 1996 Amendment note under section 251 of this title. EFFECTIVE DATE OF 1979 AMENDMENT Section 12 of Pub. L. 96-83 provided that: "Except to the extent otherwise provided therein, the amendments made by this Act [see Short Title of 1979 Amendment note below] shall take effect on October 1, 1979." SHORT TITLE OF 2003 AMENDMENT Pub. L. 108-136, div. A, title XIV, Sec. 1401, Nov. 24, 2003, 117 Stat. 1663, provided that: "This title [enacting sections 414b, 428a, and 437 of this title, amending sections 403, 414, 433, and 436 of this title, section 2855 of Title 10, Armed Forces, and section 1115 of Title 31, Money and Finance, enacting provisions set out as notes under sections 253, 253a, 405, 428a, and 433 of this title and section 1103 of Title 40, Public Buildings, Property, and Works, amending provisions set out as notes under section 264 of this title, section 2304 of Title 10, and section 501 of Title 31, and repealing provisions set out as a note under section 2302 of Title 10] may be cited as the 'Services Acquisition Reform Act of 2003'." SHORT TITLE OF 1988 AMENDMENT Section 1 of Pub. L. 100-679 provided that: "This Act [enacting sections 421 to 424 of this title, amending this section, sections 402, 403, 405, 410, and 420 of this title, sections 5312 to 5315, 8331, 8401, 8701, and 8901 of Title 5, Government Organization and Employees, and section 541 of former Title 40, Public Buildings, Property, and Works, repealing section 2168 of Title 50, Appendix, War and National Defense, and enacting provisions set out as notes under sections 405 and 423 of this title and section 5312 of Title 5] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1988'." SHORT TITLE OF 1983 AMENDMENT Section 1 of Pub. L. 98-191 provided: "That this Act [enacting sections 413 to 415 of this title, amending this section, sections 5, 6a-1, 252, 403, 405, 407, 409, 410, and 411 of this title, section 831h of Title 16, Conservation, and sections 474, 481, and 487 of former Title 40, Public Buildings, Property, and Works] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1983'." SHORT TITLE OF 1979 AMENDMENT Section 1(a) of Pub. L. 96-83 provided that: "This Act [amending this section, sections 403, 405, 407, and 409 to 412 of this title, and sections 474, 481, and 487 of former Title 40, Public Buildings, Property and Works, and enacting provisions set out as notes under this section and section 405a of this title] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1979'." SHORT TITLE Section 1(a) of Pub. L. 93-400, as amended by Pub. L. 103-355, title X, Sec. 10005(a)(1), Oct. 13, 1994, 108 Stat. 3406, provided that: "This Act [enacting this chapter and amending section 5315 of Title 5, Government Organization and Employees, and sections 474, 481, and 487 of former Title 40, Public Buildings, Property, and Works] may be cited as the 'Office of Federal Procurement Policy Act'." STYLISTIC CONSISTENCY Section 10005(b)(1) of Pub. L. 103-355 provided that: "The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) is amended so that the section designation and section heading of each section of such Act is in the same form and typeface as the section designation and heading of this section [108 Stat. 3406]." REQUIREMENTS FOR USE OF APPROPRIATIONS BY EXECUTIVE AGENCIES FOR SERVICES BY CONTRACT Pub. L. 102-394, title V, Sec. 502, Oct. 6, 1992, 106 Stat. 1825, provided that: "No part of any appropriation contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts shall be expended by an executive agency, as referred to in the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), pursuant to any obligation for services by contract, unless such executive agency has awarded and entered into such contract in full compliance with such Act and regulations promulgated thereunder." Similar provisions were contained in the following prior appropriation acts: Pub. L. 102-170, title V, Sec. 502, Nov. 26, 1991, 105 Stat. 1140. Pub. L. 101-517, title V, Sec. 502, Nov. 5, 1990, 104 Stat. 2221. Pub. L. 101-166, title V, Sec. 502, Nov. 21, 1989, 103 Stat. 1189. Pub. L. 100-202, Sec. 101(h) [title V, Sec. 502], Dec. 22, 1987, 101 Stat. 1329-256, 1329-287. Pub. L. 99-500, Sec. 101(i) [H.R. 5233, title V, Sec. 502], Oct. 18, 1986, 100 Stat. 1783-287, and Pub. L. 99-591, Sec. 101(i) [H.R. 5233, title V, Sec. 502], Oct. 30, 1986, 100 Stat. 3341-287. Pub. L. 99-178, title V, Sec. 502, Dec. 12, 1985, 99 Stat. 1132. Pub. L. 98-619, title V, Sec. 502, Nov. 8, 1984, 98 Stat. 3332. Pub. L. 98-139, title V, Sec. 502, Oct. 31, 1983, 97 Stat. 899. Pub. L. 97-377, title I, Sec. 101(e)(1) [title V, Sec. 502], Dec. 21, 1982, 96 Stat. 1878, 1904. -EXEC- EX. ORD. NO. 12073. FEDERAL PROCUREMENT IN LABOR SURPLUS AREAS Ex. Ord. No. 12073, Aug. 16, 1978, 43 F.R. 36873, provided: By the authority vested in me as President by the Constitution of the United States of America, and in order to strengthen the economic base of our Nation, it is hereby ordered as follows: -MISC1- 1-1. PROCUREMENTS IN LABOR SURPLUS AREAS 1-101. Executive agencies shall emphasize procurement set-asides in labor surplus areas in order to strengthen our Nation's economy. 1-102. Labor surplus area procurements shall be consistent with this Order and, to the extent funds are available, the priorities of Section 15 of the Small Business Act, as amended by Public Law 95-89 (15 U.S.C. 644). 1-2. ADMINISTRATOR OF GENERAL SERVICES 1-201. The Administrator shall coordinate with and advise State and local officials with regard to Federal efforts to encourage procurements in labor surplus areas with the aim of fostering economic development in labor surplus areas. 1-202. The Administrator shall establish specific labor surplus area procurement targets for Executive agencies in consultation with the heads of those agencies. 1-203. In cooperation with the heads of Executive agencies, the Administrator shall encourage the use of set-asides or other appropriate methods for meeting procurement targets in labor surplus areas. 1-204. The Administrator shall report every six months to the President on the progress of the agencies in achieving the procurement targets. 1-3. AGENCY RESPONSIBILITIES 1-301. The Secretary of Labor shall classify and designate labor markets which are labor surplus areas. The Secretary shall provide labor market data to the heads of agencies and State and local officials in order to promote the development of business opportunities in labor surplus areas. 1-302. The heads of Executive agencies shall cooperate with the Administrator in carrying out his responsibilities for labor surplus area programs and shall provide the information necessary for setting procurement targets and recording achievement. They shall keep the Administrator informed of plans and programs which affect labor surplus procurements, with particular attention to opportunities for minority firms. 1-303. In accord with Section 6 of the Office of Federal Procurement Policy Act (41 U.S.C. 405), the Administrator for Federal Procurement Policy shall be responsible for the overall direction and oversight of the policies affecting procurement programs for labor surplus areas. Jimmy Carter. -EXEC- EXECUTIVE ORDER NO. 12092 Ex. Ord. No. 12092, Nov. 1, 1978, 43 F.R. 51375, as amended by Ex. Ord. No. 12161, Sept. 28, 1979, 44 F.R. 56663, which related to the prohibition against inflationary procurement practices, was revoked by Ex. Ord. No. 12288, Jan. 29, 1981, 46 F.R. 10135. EXECUTIVE ORDER NO. 12352 Ex. Ord. No. 12352, Mar. 17, 1982, 47 F.R. 12125, which related to Federal procurement reform to support mission accomplishment more effectively, was revoked by Ex. Ord. No. 12931, Sec. 4, Oct. 13, 1994, 59 F.R. 52388, set out below. EXECUTIVE ORDER NO. 12818 Ex. Ord. No. 12818, Oct. 23, 1992, 57 F.R. 48713, which prohibited executive agencies from requiring labor agreements on Federal or federally funded construction projects, 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. 12931. FEDERAL PROCUREMENT REFORM Ex. Ord. No. 12931, Oct. 13, 1994, 59 F.R. 52387, 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 spending of public funds through fundamental reforms in Government procurement, it is hereby ordered as follows: Section 1. To make procurement more effective in support of mission accomplishment and consistent with recommendations of the National Performance Review, heads of executive agencies engaged in the procurement of supplies and services shall: (a) Review agency procurement rules, reporting requirements, contractual requirements, certification procedures, and other administrative procedures over and above those required by statute, and, where practicable, replace them with guiding principles that encourage and reward innovation; (b) Review existing and planned agency programs to assure that such programs meet agency mission needs; (c) Ensure that procurement organizations focus on measurable results and on increased attention to understanding and meeting customer needs; (d) Increase the use of commercially available items where practicable, place more emphasis on past contractor performance, and promote best value rather than simply low cost in selecting sources for supplies and services; (e) Ensure that simplified acquisition procedures are used, to the maximum extent practicable, for procurements under the simplified acquisition threshold in order to reduce administrative burdens and more effectively support the accomplishment of agency missions; (f) Expand the use of the Government purchase card by the agency and take maximum advantage of the micro-purchase authority provided in the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103- 355, see Short Title of 1994 Amendment note set out under section 251 of this title] by delegating the authority, to the maximum extent practicable, to the offices that will be using the supplies or services to be purchased; (g) Establish clear lines of contracting authority and accountability; (h) Establish career education programs for procurement professionals, including requirements for successful completion of educational requirements or mandatory training for entry level positions and for promotion to higher level positions, in order to ensure a highly qualified procurement work force; (i) Designate a Procurement Executive with agency-wide responsibility to oversee development of procurement goals, guidelines, and innovation, measure and evaluate procurement office performance against stated goals, enhance career development of the procurement work force, and advise the agency heads whether goals are being achieved; and (j) Review existing and planned information technology acquisitions and contracts to ensure that the agency receives the best value with regard to price and technology, and consider alternatives in cases where best value is not being obtained. Sec. 2. The Director of the Office of Personnel Management, in consultation with the heads of executive agencies, shall ensure that personnel policies and classification standards meet the needs of executive agencies for a professional procurement work force. Sec. 3. The Administrator of the Office of Federal Procurement Policy, after consultation with the Director of the Office of Management and Budget, shall work jointly with the heads of executive agencies to provide broad policy guidance and overall leadership necessary to achieve procurement reform, including, but not limited to: (a) Coordinating Government-wide efforts; (b) Assisting executive agencies in streamlining guidance for procurement processes; (c) Identifying desirable Government-wide procurement system criteria; and (d) Identifying major inconsistencies in law and policies relating to procurement that impose unnecessary burdens on the private sector and Federal procurement officials, and, following coordination with executive agencies, submitting necessary legislative initiatives to the Office of Management and Budget for the resolution of such inconsistencies. Sec. 4. Executive Order No. 12352 is revoked. William J. Clinton. EXECUTIVE ORDER NO. 12969 Ex. Ord. No. 12969, Aug. 8, 1995, 60 F.R. 40989, which provided for Federal agencies to contract with companies that report in a public manner on toxic chemicals released to the environment, was revoked by Ex. Ord. No. 13148, Sec. 901, Apr. 21, 2000, 65 F.R. 24604, set out as a note under section 4321 of Title 42, The Public Health and Welfare. STREAMLINING PROCUREMENT THROUGH ELECTRONIC COMMERCE Memorandum of President of the United States, Oct. 28, 1993, 58 F.R. 58095, provided: Memorandum for the Heads of Executive Departments and Agencies [and] the President's Management Council The Federal Government spends $200 billion annually buying goods and services. Unfortunately, the red tape and burdensome paperwork of the current procurement system increases costs, produces unnecessary delays, and reduces Federal work force productivity. Moving to an electronic commerce system to simplify and streamline the purchasing process will promote customer service and cost- effectiveness. The electronic exchange of acquisition information between the private sector and the Federal Government also will increase competition by improving access to Federal contracting opportunities for the more than 300,000 vendors currently doing business with the Government, particularly small businesses, as well as many other vendors who find access to bidding opportunities difficult under the current system. For these reasons, I am committed to fundamentally altering and improving the way the Federal Government buys goods and services by ensuring that electronic commerce is implemented for appropriate Federal purchases as quickly as possible. 1. OBJECTIVES. The objectives of this electronic commerce initiative are to: (a) exchange procurement information - such as solicitations, offers, contracts, purchase orders, invoices, payments, and other contractual documents - electronically between the private sector and the Federal Government to the maximum extent practical; (b) provide businesses, including small, small disadvantaged, and women-owned businesses, with greater access to Federal procurement opportunities; (c) ensure that potential suppliers are provided simplified access to the Federal Government's electronic commerce system; (d) employ nationally and internationally recognized data formats that serve to broaden and ease the electronic interchange of data; and (e) use agency and industry systems and networks to enable the Government and potential suppliers to exchange information and access Federal procurement data. 2. IMPLEMENTATION. The President's Management Council, in coordination with the Office of Federal Procurement Policy of the Office of Management and Budget, and in consultation with appropriate Federal agencies with applicable technical and functional expertise, as necessary, shall provide overall leadership, management oversight, and policy direction to implement electronic commerce in the executive branch through the following actions: (a) by March 1994, define the architecture for the Government- wide electronic commerce acquisition system and identify executive departments or agencies responsible for developing, implementing, operating, and maintaining the Federal electronic system; (b) by September 1994, establish an initial electronic commerce capability to enable the Federal Government and private vendors to electronically exchange standardized requests for quotations, quotes, purchase orders, and notice of awards and begin Government- wide implementation; (c) by July 1995, implement a full scale Federal electronic commerce system that expands initial capabilities to include electronic payments, document interchange, and supporting databases; and (d) by January 1997, complete Government-wide implementation of electronic commerce for appropriate Federal purchases, to the maximum extent possible. This implementation schedule should be accelerated where practicable. The head of each executive department or agency shall: (a) ensure that budgetary resources are available, within approved budget levels, for electronic commerce implementation in each respective department or agency; (b) assist the President's Management Council in implementing the electronic commerce system as quickly as possible in accordance with the schedules established herein; and (c) designate one or more senior level employees to assist the President's Management Council and serve as a point of contact for the development and implementation of the Federal electronic commerce system within each respective department or agency. 3. NO PRIVATE RIGHTS CREATED. This directive is for the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register. William J. Clinton. -End- -CITE- 41 USC Sec. 403 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 403. Definitions -STATUTE- As used in this chapter: (1) The term "executive agency" means - (A) an executive department specified in section 101 of title 5; (B) a military department specified in section 102 of such title; (C) an independent establishment as defined in section 104(1) of such title; and (D) a wholly owned Government corporation fully subject to the provisions of chapter 91 of title 31. (2) The term "procurement" includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout. (3) The term "procurement system" means the integration of the procurement process, the professional development of procurement personnel, and the management structure for carrying out the procurement function. (4) The term "standards" means the criteria for determining the effectiveness of the procurement system by measuring the performance of the various elements of such system. (5) The term "competitive procedures" means procedures under which an agency enters into a contract pursuant to full and open competition. (6) The term "full and open competition", when used with respect to a procurement, means that all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement. (7) The term "responsible source" means a prospective contractor who - (A) has adequate financial resources to perform the contract or the ability to obtain such resources; (B) is able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and Government business commitments; (C) has a satisfactory performance record; (D) has a satisfactory record of integrity and business ethics; (E) has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain such organization, experience, controls, and skills; (F) has the necessary production, construction, and technical equipment and facilities, or the ability to obtain such equipment and facilities; and (G) is otherwise qualified and eligible to receive an award under applicable laws and regulations. (8) The term "technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. (9)(A) The term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need, which elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property; and (B) a system shall be considered a major system if (i) the Department of Defense is responsible for the system and the total expenditures for research, development, test and evaluation for the system are estimated to be more than $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement of more than $300,000,000 (based on fiscal year 1980 constant dollars); (ii) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed $750,000 (based on fiscal year 1980 constant dollars) or the dollar threshold for a "major system" established by the agency pursuant to Office of Management and Budget (OMB) Circular A-109, entitled "Major Systems Acquisitions", whichever is greater; or (iii) the system is designated a "major system" by the head of the agency responsible for the system. (10) The term "item", "item of supply", or "supplies" means any individual part, component, subassembly, assembly, or subsystem integral to a major system, and other property which may be replaced during the service life of the system, and includes spare parts and replenishment spare parts, but does not include packaging or labeling associated with shipment or identification of an "item". (11) The term "simplified acquisition threshold" means $100,000. (12) The term "commercial item" means any of the following: (A) Any item, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and that - (i) has been sold, leased, or licensed to the general public; or (ii) has been offered for sale, lease, or license to the general public. (B) Any item that evolved from an item described in subparagraph (A) through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation. (C) Any item that, but for - (i) modifications of a type customarily available in the commercial marketplace, or (ii) minor modifications made to meet Federal Government requirements, would satisfy the criteria in subparagraph (A) or (B). (D) Any combination of items meeting the requirements of subparagraph (A), (B), (C), or (E) that are of a type customarily combined and sold in combination to the general public. (E) Installation services, maintenance services, repair services, training services, and other services if - (i) the services are procured for support of an item referred to in subparagraph (A), (B), (C), or (D), regardless of whether such services are provided by the same source or at the same time as the item; and (ii) the source of the services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government. (F) Services offered and sold competitively, in substantial quantities, in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. (G) Any item, combination of items, or service referred to in subparagraphs (A) through (F) notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor. (H) A nondevelopmental item, if the procuring agency determines, in accordance with conditions set forth in the Federal Acquisition Regulation, that the item was developed exclusively at private expense and has been sold in substantial quantities, on a competitive basis, to multiple State and local governments. (13) The term "nondevelopmental item" means any of the following: (A) Any commercial item. (B) Any previously developed item of supply that is in use by a department or agency of the United States, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement. (C) Any item of supply described in subparagraph (A) or (B) that requires only minor modification or modification of the type customarily available in the commercial marketplace in order to meet the requirements of the procuring department or agency. (D) Any item of supply currently being produced that does not meet the requirements of subparagraph (A), (B), or (C) solely because the item is not yet in use. (14) The term "component" means any item supplied to the Federal Government as part of an end item or of another component. (15) The term "commercial component" means any component that is a commercial item. (16) The term "acquisition" - (A) means the process of acquiring, with appropriated funds, by contract for purchase or lease, property or services (including construction) that support the missions and goals of an executive agency, from the point at which the requirements of the executive agency are established in consultation with the chief acquisition officer of the executive agency; and (B) includes - (i) the process of acquiring property or services that are already in existence, or that must be created, developed, demonstrated, and evaluated; (ii) the description of requirements to satisfy agency needs; (iii) solicitation and selection of sources; (iv) award of contracts; (v) contract performance; (vi) contract financing; (vii) management and measurement of contract performance through final delivery and payment; and (viii) technical and management functions directly related to the process of fulfilling agency requirements by contract. (17) The term "Federal Acquisition Regulatory Council" means the Federal Acquisition Regulatory Council established under section 421 of this title. -SOURCE- (Pub. L. 93-400, Sec. 4, Aug. 30, 1974, 88 Stat. 797; Pub. L. 96- 83, Sec. 3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98-191, Sec. 4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 98-369, div. B, title VII, Sec. 2731, July 18, 1984, 98 Stat. 1195; Pub. L. 98-577, title I, Sec. 102, Oct. 30, 1984, 98 Stat. 3067; Pub. L. 100-679, Sec. 3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 101-510, div. A, title VIII, Sec. 806(a)(1), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103-355, title IV, Sec. 4001, title VIII, Sec. 8001, Oct. 13, 1994, 108 Stat. 3338, 3384; Pub. L. 104-106, div. D, title XLII, Sec. 4204, Feb. 10, 1996, 110 Stat. 655; Pub. L. 106-65, div. A, title VIII, Sec. 805, Oct. 5, 1999, 113 Stat. 705; Pub. L. 108-136, div. A, title XIV, Secs. 1411, 1433, Nov. 24, 2003, 117 Stat. 1663, 1673; Pub. L. 108-375, div. A, title VIII, Sec. 807(b), Oct. 28, 2004, 118 Stat. 2011.) -REFTEXT- REFERENCES IN TEXT This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 93-400, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 401 of this title and Tables. -COD- CODIFICATION Section 2731 of Pub. L. 98-369 directed in part that this section be redesignated as section 4 of Pub. L. 93-400 to correct an inconsistency in the language of the amendment by Pub. L. 98-191, which amended this section generally but referred to it as "Sec. 3". Since this section was enacted as section 4 of Pub. L. 93-400 no change was required. -MISC1- AMENDMENTS 2004 - Par. (17). Pub. L. 108-375 added par. (17). 2003 - Par. (12)(F). Pub. L. 108-136, Sec. 1433, inserted "or specific outcomes to be achieved" after "performed". Par. (16). Pub. L. 108-136, Sec. 1411, added par. (16). 1999 - Par. (12)(E). Pub. L. 106-65 amended subpar. (E) generally. Prior to amendment, subpar. (E) read as follows: "Installation services, maintenance services, repair services, training services, and other services if such services are procured for support of an item referred to in subparagraph (A), (B), (C), or (D) and if the source of such services - "(i) offers such services to the general public and the Federal Government contemporaneously and under similar terms and conditions; and "(ii) offers to use the same work force for providing the Federal Government with such services as the source uses for providing such services to the general public." 1996 - Par. (12)(F). Pub. L. 104-106 inserted "or market" after "catalog". 1994 - Pub. L. 103-355, Sec. 8001(b)(1), substituted "this chapter:" for "this chapter - " in introductory provisions. Pars. (1) to (3). Pub. L. 103-355, Sec. 8001(b)(2), (3), substituted "The term" for "the term" and period for semicolon at end. Par. (4). Pub. L. 103-355, Sec. 8001(b)(2), (4), substituted "The term" for "the term" and period for "; and" at end. Pars. (5) to (9). Pub. L. 103-355, Sec. 8001(b)(2), (3), substituted "The term" for "the term" and period for semicolon at end. Par. (10). Pub. L. 103-355, Sec. 8001(b)(2), (4), substituted "The term" for "the term" and period for "; and" at end. Par. (11). Pub. L. 103-355, Sec. 8001(b)(2), which directed substitution of "The term" for "the term" in par. (11), could not be executed because phrase "the term" did not appear subsequent to amendment by Pub. L. 103-355, Sec. 4001. See below. Pub. L. 103-355, Sec. 4001, amended par. (11) generally. Prior to amendment, par. (11) read as follows: "the term 'small purchase threshold' means $25,000, adjusted on October 1 of each year divisible by 5 to the amount equal to $25,000 in constant fiscal year 1990 dollars (rounded to the nearest $1,000)." Pars. (12) to (15). Pub. L. 103-355, Sec. 8001(a), added pars. (12) to (15). 1990 - Par. (11). Pub. L. 101-510 added par. (11). 1988 - Pars. (4) to (11). Pub. L. 100-679 redesignated pars. (5) to (11) as (4) to (10), respectively, and struck out former par. (4) which defined "single system of Government-wide procurement regulations" for purposes of this chapter. 1984 - Pars. (6) to (8). Pub. L. 98-369 added pars. (6) to (8). Pars. (9) to (11). Pub. L. 98-577 added pars. (9) to (11). 1983 - Pub. L. 98-191 amended section generally, restating definitions of "executive agency" and "procurement" and inserting definitions of "procurement system", "single-system of Government- wide procurement regulations", and "standards". 1979 - Pub. L. 96-83 designated existing provisions as subsec. (a) and added subsec. (b). 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 1979 AMENDMENT Amendment by Pub. L. 96-83 effective Oct. 1, 1979, see section 12 of Pub. L. 96-83, set out as a note under section 401 of this title. MODIFICATION OF FEDERAL ACQUISITION REGULATIONS Section 2752 of Pub. L. 98-369 provided that: "Not later than March 31, 1985, the single Government-wide procurement regulation referred to in section 4(4)(A) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(4)(A)) shall be modified to conform to the requirements of this title [title VII of Pub. L. 98-369, Secs. 2701-2753, July 18, 1984, 98 Stat. 1175-1203] and the amendments made by this title [see Short Title of 1984 Amendment note set out under section 251 of this title]." -End- -CITE- 41 USC Sec. 404 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 404. Establishment of Office of Federal Procurement Policy; appointment of Administrator -STATUTE- (a) There is in the Office of Management and Budget an Office of Federal Procurement Policy (hereinafter referred to as the "Office") to provide overall direction of Government-wide procurement policies, regulations, procedures, and forms for executive agencies and to promote economy, efficiency, and effectiveness in the procurement of property and services by the executive branch of the Federal Government. (b) There shall be at the head of the Office an Administrator for Federal Procurement Policy (hereinafter referred to as the "Administrator"), who shall be appointed by the President, by and with the advice and consent of the Senate. -SOURCE- (Pub. L. 93-400, Sec. 5, Aug. 30, 1974, 88 Stat. 797; Pub. L. 104- 106, div. D, title XLIII, Sec. 4305(a)(1), Feb. 10, 1996, 110 Stat. 665.) -MISC1- AMENDMENTS 1996 - Subsec. (a). Pub. L. 104-106 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "There is established in the Office of Management and Budget an office to be known as the Office of Federal Procurement Policy (hereinafter referred to as the 'Office')." 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. -End- -CITE- 41 USC Sec. 405 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 405. Authority and functions of the Administrator -STATUTE- (a) Development of procurement policy; leadership The Administrator shall provide overall direction of procurement policy and leadership in the development of procurement systems of the executive agencies. To the extent that the Administrator considers appropriate, in carrying out the policies and functions set forth in this chapter, and with due regard for applicable laws and the program activities of the executive agencies, the Administrator may prescribe Government-wide procurement policies. These policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation and shall be followed by executive agencies in the procurement of - (1) property other than real property in being; (2) services, including research and development; and (3) construction, alteration, repair, or maintenance of real property. (b) Government-wide procurement regulations In any instance in which the Administrator determines that the Department of Defense, the National Aeronautics and Space Administration, and the General Services Administration are unable to agree on or fail to issue Government-wide regulations, procedures and forms in a timely manner, including any such regulations, procedures, and forms as are necessary to implement prescribed policy initiated by the Administrator under subsection (a) of this section, the Administrator shall, with due regard for applicable laws and the program activities of the executive agencies and consistent with the policies and functions set forth in this chapter, prescribe Government-wide regulations, procedures and forms which shall be followed by executive agencies in the procurement of - (1) property other than real property in being; (2) services, including research and development; and (3) construction, alteration, repair, or maintenance of real property. (c) Noninterference with executive agencies The authority of the Administrator under this chapter shall not be construed to - (1) impair or interfere with the determination by executive agencies of their need for, or their use of, specific property, services, or construction, including particular specifications therefor; or (2) interfere with the determination by executive agencies of specific actions in the award or administration of procurement contracts. (d) Enumeration of included functions The functions of the Administrator shall include - (1) providing leadership and ensuring action by the executive agencies in the establishment, development and maintenance of the single system of simplified Government-wide procurement regulations and resolving differences among the executive agencies in the development of simplified Government-wide procurement regulations, procedures and forms; (2) coordinating the development of Government-wide procurement system standards that shall be implemented by the executive agencies in their procurement systems; (3) providing leadership and coordination in the formulation of the executive branch position on legislation relating to procurement; (4)(A) providing for and directing the activities of the computer-based Federal Procurement Data System (including recommending to the Administrator of General Services a sufficient budget for such activities), which shall be located in the General Services Administration, in order to adequately collect, develop, and disseminate procurement data; and (B) ensuring executive agency compliance with the record requirements of section 417 of this title; (5) providing for and directing the activities of the Federal Acquisition Institute (including recommending to the Administrator of General Services a sufficient budget for such activities), which shall be located in the General Services Administration, in order to - (A) foster and promote the development of a professional acquisition workforce Government-wide; (B) promote and coordinate Government-wide research and studies to improve the procurement process and the laws, policies, methods, regulations, procedures, and forms relating to acquisition by the executive agencies; (C) collect data and analyze acquisition workforce data from the Office of Personnel Management, the heads of executive agencies, and, through periodic surveys, from individual employees; (D) periodically analyze acquisition career fields to identify critical competencies, duties, tasks, and related academic prerequisites, skills, and knowledge; (E) coordinate and assist agencies in identifying and recruiting highly qualified candidates for acquisition fields; (F) develop instructional materials for acquisition personnel in coordination with private and public acquisition colleges and training facilities; (G) evaluate the effectiveness of training and career development programs for acquisition personnel; (H) promote the establishment and utilization of academic programs by colleges and universities in acquisition fields; (I) facilitate, to the extent requested by agencies, interagency intern and training programs; and (J) perform other career management or research functions as directed by the Administrator; (6) administering the provisions of section 433 of this title; (7) establishing criteria and procedures to ensure the effective and timely solicitation of the viewpoints of interested parties in the development of procurement policies, regulations, procedures, and forms; (8) developing standard contract forms and contract language in order to reduce the Government's cost of procuring property and services and the private sector's cost of doing business with the Government; (9) providing for a Government-wide award to recognize and promote vendor excellence; (10) providing for a Government-wide award to recognize and promote excellence in officers and employees of the Federal Government serving in procurement-related positions; (11) developing policies, in consultation with the Administrator of the Small Business Administration, that ensure that small businesses, qualified HUBZone small business concerns (as defined in section 632(p) of title 15), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women are provided with the maximum practicable opportunities to participate in procurements that are conducted for amounts below the simplified acquisition threshold; (12) developing policies that will promote achievement of goals for participation by small businesses, qualified HUBZone small business concerns (as defined in section 632(p) of title 15), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women; and (13) completing action, as appropriate, on the recommendations of the Commission on Government Procurement. (e) Consultation; assistance of existing executive agencies; advisory committees and interagency groups In carrying out the functions set forth in subsection (d) of this section, the Administrator - (1) shall consult with the affected executive agencies, including the Small Business Administration; (2) may, with the concurrence of the heads of affected executive agencies, designate an executive agency or executive agencies to assist in the performance of such functions; and (3) may establish advisory committees or other interagency groups to assist in providing for the establishment, development, and maintenance of a single system of simplified Government-wide procurement regulations and to assist in the performance of any of the other functions which the Administrator considers appropriate. (f) Oversight of regulations promulgated by other agencies relating to procurement The Administrator, with the concurrence of the Director of the Office of Management and Budget, and with consultation with the head of the agency or agencies concerned, may deny the promulgation of or rescind any Government-wide regulation or final rule or regulation of any executive agency relating to procurement if the Administrator determines that such rule or regulation is inconsistent with any policies, regulations, or procedures issued pursuant to subsection (a) of this section. (g) Assignment, delegation, or transfer of functions prohibited Except as otherwise provided by law, no duties, functions, or responsibilities, other than those expressly assigned by this chapter, shall be assigned, delegated, or transferred to the Administrator. (h) Real property procurement; Office of Management and Budget Nothing in this chapter shall be construed to - (1) impair or affect the authorities or responsibilities conferred by the Federal Property and Administrative Services Act of 1949 (!1) with respect to the procurement of real property; or (2) limit the current authorities and responsibilities of the Director of the Office of Management and Budget. (i) Recipients of Federal grants or assistance (1) With due regard to applicable laws and the program activities of the executive agencies administering Federal programs of grants or assistance, the Administrator may prescribe Government-wide policies, regulations, procedures, and forms which the Administrator considers appropriate and which shall be followed by such executive agencies in providing for the procurement, to the extent required under such programs, of property or services referred to in clauses (1), (2), and (3) of subsection (a) of this section by recipients of Federal grants or assistance under such programs. (2) Nothing in paragraph (1) shall be construed to - (A) permit the Administrator to authorize procurement or supply support, either directly or indirectly, to recipients of Federal grants or assistance; or (B) authorize any action by such recipients contrary to State and local laws, in the case of programs to provide Federal grants or assistance to States and political subdivisions. (j) Policy regarding consideration of contractor past performance (1) The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include - (A) standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies; (B) policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary; (C) policies for ensuring that - (i) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, contracts entered into by other departments and agencies of the Federal Government, contracts entered into by agencies of State and local governments, and contracts entered into by commercial customers; and (ii) such information submitted by offerors is considered; and (D) the period for which information on past performance of offerors may be maintained and considered. (2) In the case of an offeror with respect to which there is no information on past contract performance or with respect to which information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance. (k) Annual reporting requirement The Administrator shall submit to Congress, on an annual basis, an assessment of the progress made in executive agencies in implementing the policy regarding major acquisitions that is stated in section 263(a) of this title. The Administrator shall use data from existing management systems in making the assessment. -SOURCE- (Pub. L. 93-400, Sec. 6, Aug. 30, 1974, 88 Stat. 797; Pub. L. 96- 83, Sec. 4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98-191, Sec. 5, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 98-369, div. B, title VII, Sec. 2732(b)(1), July 18, 1984, 98 Stat. 1199; Pub. L. 100-679, Sec. 3(a), Nov. 17, 1988, 102 Stat. 4055; Pub. L. 103-355, title I, Sec. 1091(b)(2), title V, Secs. 5051(b), 5091, title VII, Sec. 7108, Oct. 13, 1994, 108 Stat. 3272, 3351, 3361, 3378; Pub. L. 104- 106, div. D, title XLIII, Secs. 4307(b), 4321(h)(1), (2), 4322(a)(1), div. E, title LVI, Sec. 5607(d), Feb. 10, 1996, 110 Stat. 668, 675, 677, 702; Pub. L. 104-201, div. A, title X, Sec. 1074(f)(1), Sept. 23, 1996, 110 Stat. 2661; Pub. L. 105-85, div. A, title VIII, Sec. 851(b), title X, Sec. 1073(g)(2)(B), Nov. 18, 1997, 111 Stat. 1851, 1906; Pub. L. 105-135, title VI, Sec. 604(f)(1), Dec. 2, 1997, 111 Stat. 2634.) -REFTEXT- REFERENCES IN TEXT The Federal Property and Administrative Services Act of 1949, referred to in subsec. (h)(1), is act June 30, 1949, ch. 288, 63 Stat. 377, as amended. Except for title III of the Act, which is classified generally to subchapter IV (Sec. 251 et seq.) of chapter 4 of this title, 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. -MISC1- AMENDMENTS 1997 - Subsec. (d)(5)(J). Pub. L. 105-85, Sec. 1073(g)(2)(B)(i), substituted semicolon for period at end. Subsec. (d)(6). Pub. L. 105-85, Sec. 1073(g)(2)(B)(ii), realigned margins. Subsec. (d)(11). Pub. L. 105-135, Sec. 604(f)(1)(A), inserted "qualified HUBZone small business concerns (as defined in section 632(p) of title 15)," after "ensure that small businesses,". Subsec. (d)(12). Pub. L. 105-135, Sec. 604(f)(1)(B), inserted "qualified HUBZone small business concerns (as defined in section 632(p) of title 15)," after "participation by small businesses,". Pub. L. 105-85, Sec. 1073(g)(2)(B)(iii), substituted "small businesses" for "small business" after "individuals, and". Subsec. (k). Pub. L. 105-85, Sec. 851(b), inserted "regarding major acquisitions that is" after "implementing the policy". 1996 - Subsec. (b). Pub. L. 104-106, Sec. 4322(a)(1), struck out second comma after "subsection (a) of this section". Subsec. (d)(5)(A). Pub. L. 104-106, Sec. 4307(b)(2)(A), substituted "the development of a professional acquisition workforce Government-wide" for "Government-wide career management programs for a professional procurement work force". Subsec. (d)(5)(B). Pub. L. 104-106, Sec. 4307(b)(2)(B)(i), substituted "acquisition by the" for "procurement by the". Subsec. (d)(5)(C) to (J). Pub. L. 104-106, Sec. 4307(b)(2)(B)(ii), (iii), added subpars. (C) to (J) and struck out former subpar. (C) which read as follows: "establish policies and procedures for the establishment and implementation of education and training programs authorized by this chapter, including the establishment and implementation of training, in conjunction with the General Services Administration, for critical procurement personnel designed to increase the participation of small business concerns owned and controlled by socially and economically disadvantaged individuals, women, and other minorities in procurement activities conducted by an executive agency." Subsec. (d)(6). Pub. L. 104-106, Sec. 4307(b)(3), added par. (6). Former par. (6) redesignated (7). Subsec. (d)(7) to (10). Pub. L. 104-106, Sec. 4307(b)(1), redesignated pars. (6) to (9) as (7) to (10), respectively. Former par. (10) redesignated (11). Subsec. (d)(11). Pub. L. 104-106, Sec. 4321(h)(2), which directed substitution of "small businesses" for "small business", could not be executed because the words "small business" did not appear. Pub. L. 104-106, Sec. 4307(b)(1), redesignated par. (10) as (11). Former par. (11) redesignated (12). Subsec. (d)(12). Pub. L. 104-106, Sec. 4307(b)(1), redesignated par. (11) as (12). Former par. (12) redesignated (13). Subsec. (d)(13). Pub. L. 104-106, Sec. 4321(h)(1), which directed transferring par. (12) to end of subsec. (d), was executed by transferring par. (13) to end of subsec. (d) to reflect the probable intent of Congress and the redesignation of par. (12) as (13) by Pub. L. 104-106, Sec. 4307(b)(1). See below. Pub. L. 104-106, Sec. 4307(b)(1), redesignated par. (12) as (13). Subsec. (f). Pub. L. 104-201 struck out "the policies set forth in section 401 of this title or" after "inconsistent with". Subsec. (h)(1). Pub. L. 104-106, Sec. 5607(d), struck out "of automatic data processing and telecommunications equipment and services or" after "with respect to the procurement". 1994 - Subsec. (d)(5)(C). Pub. L. 103-355, Sec. 7108(b), added subpar. (C). Subsec. (d)(8), (9). Pub. L. 103-355, Sec. 5091, added pars. (8) and (9) at end. Former par. (8) redesignated (12). Subsec. (d)(10), (11). Pub. L. 103-355, Sec. 7108(a), added pars. (10) and (11). Subsec. (d)(12). Pub. L. 103-355, Sec. 5091(2), redesignated pars. (8) and (12). Subsec. (j). Pub. L. 103-355, Sec. 1091(b)(2), added subsec. (j). Subsec. (k). Pub. L. 103-355, Sec. 5051(b), added subsec. (k). 1988 - Subsec. (a). Pub. L. 100-679, Sec. 3(a)(1), substituted "procurement policies. These policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation and shall be" for "procurement policies which shall be implemented in the single system of Government-wide procurement regulations and shall be". Subsec. (b). Pub. L. 100-679, Sec. 3(a)(2), inserted ", including any such regulations, procedures, and forms as are necessary to implement prescribed policy initiated by the Administrator under subsection (a) of this section," after "timely manner" and substituted "Administrator shall" for "Administrator may". Subsec. (d)(4). Pub. L. 100-679, Sec. 3(a)(3), added par. (4) and struck out former par. (4) which read as follows: "providing for a computer-based Federal Procurement Data System which shall be located in the General Services Administration (acting as executive agent for the Administrator) and shall collect, develop, and disseminate procurement data;". Subsec. (d)(5). Pub. L. 100-679, Sec. 3(a)(3), added par. (5) and struck out former par. (5) which read as follows: "providing for a Federal Acquisition Institute which shall be located in the General Services Administration (acting as executive agent for the Administrator) and shall - "(A) foster and promote Government-wide career management programs for a professional procurement work force; and "(B) promote and coordinate Government-wide research and studies to improve the procurement process and the laws, policies, methods, regulations, procedures, and forms relating to procurement by the executive agencies;". Subsec. (f). Pub. L. 100-679, Sec. 3(a)(4), substituted "The Administrator, with the concurrence of the Director of the Office of Management and Budget, and with consultation with the head of the agency or agencies concerned," for "The Director of the Office of Management and Budget". 1984 - Subsec. (e). Pub. L. 98-369 substituted "subsection (d)" for "subsection (c)". 1983 - Pub. L. 98-191 amended section generally, revising and restating as subsecs. (a), (c), (d), (e), (g), (h), and (i) provisions of former subsecs. (a), (f), (d), (e), (g), (j), and (b), respectively, and by inserting provisions set out in new subsecs. (b) and (f). 1979 - Subsec. (a). Pub. L. 96-83, Sec. 4(a), substituted provisions setting forth the responsibilities of the Administrator with respect to the development and implementation of procurement policies, the coordination of programs to improve the quality and performance of personnel, and the development of a uniform procurement system, for provisions setting forth responsibility of the Administrator for overall direction of procurement policy, and functions with respect to issuance of policy, regulations, procedures, and forms. Subsec. (c). Pub. L. 96-83, Sec. 4(b), substituted provisions relating to development and proposal of a central management system, for provisions setting forth limitation of authority to procurement from appropriated funds and provisions relating to a study and report of procurement from nonappropriated funds. Subsec. (d). Pub. L. 96-83, Sec. 4(c), substituted provisions setting forth the review, development, etc., functions of the Administrator with respect to procurement policies, regulations, procedures, and forms, procurement data, procurement personnel, and procurement contracts, for provisions setting forth the establishment, monitoring, etc., functions of the Administrator with respect to uniform procurement regulations, procurement policies, regulations, procedures, and forms, procurement data, and procurement personnel. Subsec. (e). Pub. L. 96-83, Sec. 4(d), substituted provisions relating to consultation functions of the Administrator with respect to the development and implementation of the uniform procurement system, for provisions relating to the consultation functions of the Administrator with respect to the development of policies, regulations, procedures and forms to be authorized or prescribed by such Administrator. Subsecs. (h) to (j). Pub. L. 96-83, Sec. 4(e), added subsecs. (h) to (j). EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105-135 effective Oct. 1, 1997, see section 3 of Pub. L. 105-135 set out as a note under section 631 of Title 15, Commerce and Trade. EFFECTIVE DATE OF 1996 AMENDMENT For effective date and applicability of amendment by sections 4307(b), 4321(h)(1), (2), and 4322(a)(1) 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(d) 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 1979 AMENDMENT Amendment by Pub. L. 96-83 effective Oct. 1, 1979, see section 12 of Pub. L. 96-83, set out as a note under section 401 of this title. FEDERAL SUPPORT FOR ENHANCEMENT OF STATE AND LOCAL ANTI-TERRORISM RESPONSE CAPABILITIES Pub. L. 108-136, div. A, title VIII, Sec. 803, Nov. 24, 2003, 117 Stat. 1541, provided that: "(a) Procurements of Anti-Terrorism Technologies and Services by State and Local Governments. - The Administrator for Federal Procurement Policy shall establish a program under which States and units of local government may procure through contracts entered into by the Department of Defense or the Department of Homeland Security anti-terrorism technologies or anti-terrorism services for the purpose of preventing, detecting, identifying, deterring, or recovering from acts of terrorism. "(b) Authorities. - Under the program, the Secretary of Defense and the Secretary of Homeland Security may, but shall not be required to, award contracts using the procedures established by the Administrator of General Services for the multiple awards schedule program of the General Services Administration. "(c) Definition. - In this section, the term 'State or local government' has the meaning provided in section 502(c)(3) of title 40, United States Code." STATUTORY AND REGULATORY REVIEW Pub. L. 108-136, div. A, title XIV, Sec. 1423, Nov. 24, 2003, 117 Stat. 1669, as amended by Pub. L. 109-163, div. A, title VIII, Sec. 843, Jan. 6, 2006, 119 Stat. 3389, provided that: "(a) Establishment. - Not later than 90 days after the date of the enactment of this Act [Nov. 24, 2003], the Administrator for Federal Procurement Policy shall establish an advisory panel to review laws and regulations regarding the use of commercial practices, performance-based contracting, the performance of acquisition functions across agency lines of responsibility, and the use of Governmentwide contracts. "(b) Membership. - The panel shall be composed of at least nine individuals who are recognized experts in acquisition law and Government acquisition policy. In making appointments to the panel, the Administrator shall - "(1) consult with the Secretary of Defense, the Administrator of General Services, the Committees on Armed Services and Government Reform of the House of Representatives, and the Committees on Armed Services and Governmental Affairs of the Senate; and "(2) ensure that the members of the panel reflect the diverse experiences in both the public and private sectors, including academia. "(c) Duties. - The panel shall - "(1) review all Federal acquisition laws and regulations, and, to the extent practicable, government-wide acquisition policies, with a view toward ensuring effective and appropriate use of commercial practices and performance-based contracting; and "(2) make any recommendations for the modification of such laws, regulations, or policies that are considered necessary as a result of such review - "(A) to protect the best interests of the Federal Government; "(B) to ensure the continuing financial and ethical integrity of acquisitions by the Federal Government; and "(C) to amend or eliminate any provisions in such laws, regulations, or policies that are unnecessary for the effective, efficient, and fair award and administration of contracts for the acquisition by the Federal Government of goods and services. "(d) Report. - Not later than 18 months after the establishment of the panel, the panel shall submit to the Administrator and to the Committees on Armed Services and Government Reform of the House of Representatives and the Committees on Armed Services and Governmental Affairs of the Senate a report containing a detailed statement of the findings, conclusions, and recommendations of the panel." CENTER OF EXCELLENCE IN SERVICE CONTRACTING Pub. L. 108-136, div. A, title XIV, Sec. 1431(b), Nov. 24, 2003, 117 Stat. 1671, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 24, 2003], the Administrator for Federal Procurement Policy shall establish a center of excellence in contracting for services. The center of excellence shall assist the acquisition community by identifying, and serving as a clearinghouse for, best practices in contracting for services in the public and private sectors." REPORTING OF BUNDLED CONTRACT OPPORTUNITIES Section 414 of title IV of Pub. L. 105-135 provided that: "(a) Data Collection Required. - The Federal Procurement Data System described in section 6(d)(4)(A) of the Office of Federal Procurement Policy Act (41 U.S.C. 405(d)(4)(A)) shall be modified to collect data regarding bundling of contract requirements when the contracting officer anticipates that the resulting contract price, including all options, is expected to exceed $5,000,000. The data shall reflect a determination made by the contracting officer regarding whether a particular solicitation constitutes a contract bundling. "(b) Definitions. - In this section, the term 'bundling of contract requirements' has the meaning given that term in section 3(o) of the Small Business Act (15 U.S.C. 632(o)) (as added by section 412 of this subtitle)." CONGRESSIONAL FINDINGS REGARDING CONSIDERATION OF PAST CONTRACT PERFORMANCE Section 1091(b)(1) of Pub. L. 103-355 provided that: "Congress makes the following findings: "(A) Past contract performance of an offeror is one of the relevant factors that a contracting official of an executive agency should consider in awarding a contract. "(B) It is appropriate for a contracting official to consider past contract performance of an offeror as an indicator of the likelihood that the offeror will successfully perform a contract to be awarded by that official." RESULTS-ORIENTED ACQUISITION PROCESS Section 5052 of Pub. L. 103-355 provided that: "(a) Development of Process Required. - The Administrator for Federal Procurement Policy, in consultation with the heads of appropriate Federal agencies, shall develop results-oriented acquisition process guidelines for implementation by agencies in acquisitions of property and services by the Federal agencies. The process guidelines shall include the identification of quantitative measures and standards for determining the extent to which an acquisition of items other than commercial items by a Federal agency satisfies the needs for which the items are being acquired. "(b) Inapplicability of Process to Department of Defense. - The process guidelines developed pursuant to subsection (a) may not be applied to the Department of Defense." DEVELOPMENT OF DEFINITIONS REGARDING CERTAIN SMALL BUSINESS CONCERNS Pub. L. 103-355, title VII, Sec. 7107, Oct. 13, 1994, 108 Stat. 3376, directed the Administrator for Federal Procurement Policy to conduct a comprehensive review of Federal laws in effect on Nov. 1, 1994, to identify and catalogue provisions defining small business concerns owned and controlled by socially and economically disadvantaged individuals, minority-owned small business concerns, and small business concerns owned and controlled by women, for purposes of authorizing the participation of such small business concerns as prime contractors or subcontractors in contracts awarded directly by the Federal Government or subcontracts awarded under such contracts, or contracts and subcontracts funded, in whole or in part, by Federal financial assistance under grants, cooperative agreements, or other forms of Federal assistance. The Administrator was to develop uniform definitions and agency certification standards and procedures for qualification as a small business concern, and submit to Congress, not later than May 1, 1996, a report on the results of the review, the actions taken, and the Administrator's recommendations. DATA COLLECTION THROUGH FEDERAL PROCUREMENT DATA SYSTEM Section 10004 of Pub. L. 103-355 provided that: "(a) Data Collection Required. - The Federal Procurement Data System described in section 6(d)(4)(A) of the Office of Federal Procurement Policy Act (41 U.S.C. 405(d)(4)(A)) shall be modified to collect from contracts in excess of the simplified acquisition threshold data identifying the following matters: "(1) Contract awards made pursuant to competitions conducted pursuant to 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) Awards to business concerns owned and controlled by women. "(3) Number of offers received in response to a solicitation. "(4) Task order contracts. "(5) Contracts for the acquisition of commercial items. "(b) Definition. - In this section, the term 'simplified acquisition threshold' has the meaning given such term in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))." PROFIT METHODOLOGY STUDY Section 7 of Pub. L. 100-679 provided that: "(a) In General. - The Administrator shall conduct a study to develop a consistent methodology which executive agencies should use for measuring the profits earned by government contractors on procurements, other than procurements where the price is based on adequate price competition or on established catalog or market prices of commercial items sold in substantial quantities to the general public. "(b) Contractors' Financial Data. - The methodology developed under subsection (a) shall include adequate procedures for verifying and maintaining the confidentiality of contractors' financial data." -FOOTNOTE- (!1) See References in Text note below. -End- -CITE- 41 USC Sec. 405a 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 405a. Uniform Federal procurement regulations and procedures -STATUTE- The Administrator of the Office of Federal Procurement Policy is authorized and directed, pursuant to the authority conferred by Public Law 93-400 [41 U.S.C. 401 et seq.] and subject to the procedures set forth in such Public Law, to promulgate a single, simplified, uniform Federal procurement regulation and to establish procedures for insuring compliance with such provisions by all Federal agencies. In formulating such regulations and procedures the Administrator of the Office of Federal Procurement Policy shall, in consultation with the Small Business Administration, conduct analyses of the impact on small business concerns resulting from revised procurement regulations, and incorporate into revised procurement regulations simplified bidding, contract performance, and contract administration procedures for small business concerns. -SOURCE- (Pub. L. 95-507, title II, Sec. 222, Oct. 24, 1978, 92 Stat. 1771.) -REFTEXT- REFERENCES IN TEXT Public Law 93-400, referred to in text, is Pub. L. 93-400, Aug. 30, 1974, 88 Stat. 796, as amended, known as the Office of Federal Procurement Policy Act, which is classified principally to this chapter (Sec. 401 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 401 of this title and Tables. -COD- CODIFICATION Section was not enacted as part of the Office of Federal Procurement Policy Act which comprises this chapter. -MISC1- SUPERSEDURE OF INCONSISTENT STATUTORY PROVISIONS Pub. L. 96-83, Sec. 11, Oct. 10, 1979, 93 Stat. 652, provided that: "The provisions of the Act [Pub. L. 93-400, Aug. 30, 1974, 88 Stat. 796, see Short Title note set out under section 401 of this title] as amended by this Act [see Short Title of 1979 Amendment note set out under section 401 of this title] shall supersede the provisions of section 222 of the Act of October 24, 1978, entitled 'An Act to amend the Small Business Act and the Small Business Investment Act of 1958' (41 U.S.C. 405a) to the extent they are inconsistent therewith." -CROSS- DEFINITIONS The definitions in section 637c of Title 15, Commerce and Trade, apply to this section. -End- -CITE- 41 USC Sec. 405b 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 405b. Conflict of interest standards for individuals providing consulting services -STATUTE- (a) Issuance of policy and regulations Not later than 90 days after October 1, 1988, the Administrator of the Office of Federal Procurement Policy shall issue a policy, and not later than 180 days thereafter Government-wide regulations shall be issued under the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) which set forth - (1) conflict of interest standards for persons who provide consulting services described in subsection (b) of this section; and (2) procedures, including such registration, certification, and enforcement requirements as may be appropriate, to promote compliance with such standards. (b) Services subject to regulations The regulations required by subsection (a) of this section shall apply to the following types of consulting services: (1) advisory and assistance services provided to the Government to the extent necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States; (2) services related to support of the preparation or submission of bids and proposals for Federal contracts to the extent that inclusion of such services in such regulations is necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States; and (3) such other services related to Federal contracts as may be specified in the regulations prescribed under subsection (a) of this section to the extent necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States. (c) Report to Congress by Comptroller General on effectiveness of regulations The Comptroller General shall report to Congress not later than one year after October 1, 1988, his assessment of the effectiveness of the regulations prescribed under this section. (d) Intelligence activities exemption; annual report by Director of Central Intelligence Intelligence activities as defined in section 3.4(e) of Executive order 12333 or a comparable definitional section in any successor order may be exempt from the regulations required by subsection (a) of this section: Provided, That the Director of Central Intelligence shall report to the Intelligence and Appropriations Committees of the Congress no later than January 1, 1990, and annually thereafter delineating those activities and organizations which have been exempted from the regulations required by subsection (a) of this section in accordance with the provisions of this subsection. (e) Adverse effect determination by President prior to issuance of regulations; report to Congressional committees; voiding of regulations requirement The President shall, before issuance of the regulations required by subsection (a) of this section, determine if the promulgation of such regulations would have a significantly adverse effect on the accomplishment of the mission of the Department of Defense or other Federal Government agencies: Provided, That if the President determines that the regulations required by subsection (a) of this section would have such an adverse effect, the President shall so report to the appropriate committees of the Senate and the House of Representatives, stating in full the reasons for such a determination: Provided further, That in the event of submission of a report to the committees containing an adverse effect determination, the requirement for the regulations prescribed by subsection (a) of this section shall be null and void. -SOURCE- (Pub. L. 100-463, title VIII, Sec. 8141, Oct. 1, 1988, 102 Stat. 2270-47.) -REFTEXT- REFERENCES IN TEXT The Office of Federal Procurement Policy Act, referred to in subsec. (a), is Pub. L. 93-400, Aug. 30, 1974, 88 Stat. 796, as amended, which is classified principally to this chapter (Sec. 401 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 401 of this title. Executive order 12333, referred to in subsec. (d), is set out as a note under section 401 of Title 50, War and National Defense. -COD- CODIFICATION Section was enacted as part of the Department of Defense Appropriations Act, 1989, and not as part of the Office of Federal Procurement Policy Act which comprises this chapter. -CHANGE- CHANGE OF NAME Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director's capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director's capacity as the head of the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108-458, set out as a note under section 401 of Title 50, War and National Defense. -MISC1- TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103-7 (in which a report required under subsec. (d) of this section is listed on page 156), see section 3003 of Pub. L. 104-66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. -End- -CITE- 41 USC Sec. 406 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 406. Administrative powers -STATUTE- Upon the request of the Administrator, each executive agency is directed to - (1) make its services, personnel, and facilities available to the Office to the greatest practicable extent for the performance of functions under this chapter; and (2) except when prohibited by law, furnish to the Administrator and give him access to all information and records in its possession which the Administrator may determine to be necessary for the performance of the functions of the Office. -SOURCE- (Pub. L. 93-400, Sec. 7, Aug. 30, 1974, 88 Stat. 798.) -End- -CITE- 41 USC Sec. 407 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 407. Repealed. Pub. L. 104-106, div. D, title XLIII, Sec. 4305(b), Feb. 10, 1996, 110 Stat. 665 -MISC1- Section, Pub. L. 93-400, Sec. 8, Aug. 30, 1974, 88 Stat. 798; Pub. L. 96-83, Sec. 5, Oct. 10, 1979, 93 Stat. 651; Pub. L. 98-191, Sec. 8(a), Dec. 1, 1983, 97 Stat. 1331, related to responsiveness to Congress. EFFECTIVE DATE OF REPEAL For effective date and applicability of repeal, 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. 408 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 408. Applicability of existing laws -STATUTE- The authority of an executive agency under any other law to prescribe policies, regulations, procedures, and forms for procurement is subject to the authority conferred in section 405 of this title. -SOURCE- (Pub. L. 93-400, Sec. 9, Aug. 30, 1974, 88 Stat. 799.) -End- -CITE- 41 USC Sec. 409 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 409. Repealed. Pub. L. 104-106, div. D, title XLIII, Sec. 4305(c)(1), Feb. 10, 1996, 110 Stat. 665 -MISC1- Section, Pub. L. 93-400, Sec. 10, Aug. 30, 1974, 88 Stat. 799; Pub. L. 96-83, Sec. 6, Oct. 10, 1979, 93 Stat. 651; Pub. L. 98-191, Sec. 8(b), Dec. 1, 1983, 97 Stat. 1331, related to continuation in effect of procurement policies, regulations, procedures, and forms in effect on Dec. 1, 1983. EFFECTIVE DATE OF REPEAL For effective date and applicability of repeal, 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. 410 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 410. Authorization of appropriations -STATUTE- There is authorized to be appropriated for the Office of Federal Procurement Policy each fiscal year such sums as may be necessary for carrying out the responsibilities of that office for such fiscal year. -SOURCE- (Pub. L. 93-400, Sec. 11, Aug. 30, 1974, 88 Stat. 799; Pub. L. 96- 83, Sec. 7, Oct. 10, 1979, 93 Stat. 651; Pub. L. 98-191, Sec. 6, Dec. 1, 1983, 97 Stat. 1329; Pub. L. 100-679, Sec. 3(b), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 104-106, div. D, title XLIII, Sec. 4305(c)(2), Feb. 10, 1996, 110 Stat. 665.) -MISC1- AMENDMENTS 1996 - Pub. L. 104-106 amended section generally. Prior to amendment, section read as follows: "There are authorized to be appropriated to carry out the provisions of this chapter, and for no other purpose, $4,500,000 for the fiscal year ending September 30, 1984, and such sums as may be necessary for each succeeding fiscal year." 1988 - Pub. L. 100-679 substituted "such sums as may be necessary for each succeeding fiscal year" for "for each of the three succeeding fiscal years". 1983 - Pub. L. 98-191 amended section generally, substituting provisions authorizing appropriations of $4,500,000 for the fiscal year ending Sept. 30, 1984, and for each of the three succeeding fiscal years for provisions authorizing appropriations of $4,000,000 for the fiscal year ending Sept. 30, 1980, and for each of the three succeeding fiscal years and requiring that future authorization of appropriations to carry out the purposes of this chapter be referred to the Senate Committee on Governmental Affairs. 1979 - Pub. L. 96-83 substituted provisions authorizing appropriations of $4,000,000 for the fiscal year ending Sept. 30, 1980, and for each of the three succeeding fiscal years, such funds not to be used for any other purpose, with one-third of the appropriations to be made available to the Federal Acquisition Institute, for provisions authorizing appropriations of not to exceed $2,000,000 for the fiscal year ending June 30, 1975, of which not to exceed $150,000 was to be available for the purposes of former section 405(d)(4) of this title, and such other sums as necessary for each of the four fiscal years thereafter, and substituted "Governmental Affairs" for "Government Operations". 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 1979 AMENDMENT Amendment by Pub. L. 96-83 effective Oct. 1, 1979, see section 12 of Pub. L. 96-83, set out as a note under section 401 of this title. -End- -CITE- 41 USC Sec. 411 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 411. Delegation of authority by Administrator -STATUTE- (a) The Administrator may delegate, and authorize successive redelegations of, any authority, function, or power of the Administrator under this chapter (other than the authority to provide overall direction of Federal procurement policy and to prescribe policies and regulations to carry out such policy), to any other executive agency with the consent of the head of such executive agency or at the direction of the President. (b) The Administrator may make and authorize such delegations within the Office as he determines to be necessary to carry out the provisions of this chapter. -SOURCE- (Pub. L. 93-400, Sec. 12, Aug. 30, 1974, 88 Stat. 799; Pub. L. 96- 83, Sec. 8, Oct. 10, 1979, 93 Stat. 652; Pub. L. 98-191, Sec. 8(c), Dec. 1, 1983, 97 Stat. 1331.) -MISC1- AMENDMENTS 1983 - Subsec. (a). Pub. L. 98-191 substituted "The Administrator may delegate, and authorize successive redelegations of, any authority, function, or power of the Administrator under this chapter (other than the authority to provide overall direction of Federal procurement policy and to prescribe policies and regulations to carry out such policy), to any other executive agency with the consent of the head of such executive agency or at the direction of the President" for "The Administrator may delegate, and authorize successive redelegations of, any authority, function, or power under this chapter, other than his basic authority to provide overall leadership in the development of Federal procurement policy, to any other executive agency with the consent of such agency or at the direction of the President". 1979 - Subsec. (a). Pub. L. 96-83 substituted provisions respecting delegation of the leadership role in the development of policy, for provisions respecting delegation of the direction of policy and the authority to prescribe rules and regulations to effectuate that policy. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96-83 effective Oct. 1, 1979, see section 12 of Pub. L. 96-83, set out as a note under section 401 of this title. -End- -CITE- 41 USC Sec. 412 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 412. Comptroller General's access to information from Administrator; rule making procedure -STATUTE- (a) The Administrator and personnel in his Office shall furnish such information as the Comptroller General may require for the discharge of his responsibilities. For this purpose, the Comptroller General or his representatives shall have access to all books, documents, papers, and records of the Office. (b) The Administrator shall, by regulation, require that formal meetings of the Office, as designated by him, for the purpose of developing procurement policies and regulations shall be open to the public, and that public notice of each such meeting shall be given not less than ten days prior thereto. -SOURCE- (Pub. L. 93-400, Sec. 14, Aug. 30, 1974, 88 Stat. 800; Pub. L. 96- 83, Sec. 9, Oct. 10, 1979, 93 Stat. 652.) -MISC1- AMENDMENTS 1979 - Subsec. (b). Pub. L. 96-83 substituted "developing" for "establishing". EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96-83 effective Oct. 1, 1979, see section 12 of Pub. L. 96-83, set out as a note under section 401 of this title. -End- -CITE- 41 USC Sec. 413 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 413. Tests of innovative procurement methods and procedures -STATUTE- (a) The Administrator may develop innovative procurement methods and procedures to be tested by selected executive agencies. In developing any program to test innovative procurement methods and procedures under this subsection, the Administrator shall consult with the heads of executive agencies to - (1) ascertain the need for and specify the objectives of such program; (2) develop the guidelines and procedures for carrying out such program and the criteria to be used in measuring the success of such program; (3) evaluate the potential costs and benefits which may be derived from the innovative procurement methods and procedures tested under such program; (4) select the appropriate executive agencies or components of executive agencies to carry out such program; (5) specify the categories and types of products or services to be procured under such program; and (6) develop the methods to be used to analyze the results of such program. A program to test innovative procurement methods and procedures may not be carried out unless approved by the heads of the executive agencies selected to carry out such program. (b) If the Administrator determines that it is necessary to waive the application of any provision of law in order to carry out a proposed program to test innovative procurement methods and procedures under subsection (a) of this section, the Administrator shall transmit notice of the proposed program to the Committee on Government Operations of the House of Representatives and the Committee on Governmental Affairs of the Senate and request that such committees take such action as may be necessary to provide that such provision of law does not apply with respect to the proposed program. The notification to Congress shall include a description of the proposed program (including the scope and purpose of the proposed program), the procedures to be followed in carrying out the proposed program, the provisions of law affected and any provision of law the application of which must be waived in order to carry out the proposed program, and the executive agencies involved in carrying out the proposed program. -SOURCE- (Pub. L. 93-400, Sec. 15, as added Pub. L. 98-191, Sec. 7, Dec. 1, 1983, 97 Stat. 1329; amended Pub. L. 104-201, div. A, title X, Sec. 1074(f)(2), Sept. 23, 1996, 110 Stat. 2661.) -MISC1- PRIOR PROVISIONS A prior section 15 of Pub. L. 93-400 amended sections 474, 481, and 487 of former Title 40, Public Buildings, Property, and Works. AMENDMENTS 1996 - Subsec. (a). Pub. L. 104-201 struck out after first sentence "The innovative procurement methods and procedures tested under this subsection shall be consistent with the policies set forth in section 401 of this title." -CHANGE- CHANGE OF NAME Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004. 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- TEST PROGRAM FOR EXECUTIVE AGENCIES Pub. L. 103-355, title V, Sec. 5061, Oct. 13, 1994, 108 Stat. 3352, as amended by Pub. L. 104-106, div. D, title XLIII, Sec. 4302(a), Feb. 10, 1996, 110 Stat. 658; Pub. L. 105-85, div. A, title VIII, Sec. 850(f)(1), Nov. 18, 1997, 111 Stat. 1849, provided that: "(a) In General. - The Administrator for Federal Procurement Policy (in this section referred to as the 'Administrator') may conduct a program of tests of alternative and innovative procurement procedures. To the extent consistent with this section, such program shall be conducted consistent with section 15 of the Office of Federal Procurement Policy Act (41 U.S.C. 413). No more than 6 such tests shall be conducted under the authority of this subsection, and not more than 1 such test shall be conducted under such authority in an agency. "(b) Designation of Agencies. - Each test conducted pursuant to subsection (a) shall be carried out in not more than 2 specific procuring activities in an agency designated by the Administrator. Each agency so designated shall select the procuring activities participating in the test with the approval of the Administrator and shall designate a procurement testing official who shall be responsible for the conduct and evaluation of tests within that agency. "(c) Test Requirements and Limitations. - (1) Each test conducted under subsection (a) - "(A) shall be developed and structured by the Administrator or by the agency senior procurement executive designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 414(3)) in close coordination with the Administrator; and "(B) shall be limited to specific programs of agencies or specific acquisitions. "(2) The total estimated life-cycle cost to the Federal Government for each test conducted under subsection (a) may not exceed $100,000,000. "(3)(A) Except as provided in subparagraph (B), each contract awarded in conducting the tests under subsection (a) (including the cost of options if all options were to be exercised) may not exceed $5,000,000. "(B) For one of the tests conducted under subsection (a), the amount of each contract awarded in conducting the test (including options) may exceed $5,000,000. "(4) The program of tests conducted under subsection (a) shall include, either as a test or as part of a test, the use of the electronic commerce capability required by section 30 of the Office of Federal Procurement Policy Act [41 U.S.C. 426] for procurement actions in amounts greater than the simplified acquisition threshold. "(d) Limitation on Total Value of Contracts Under Program. - (1) The Administrator shall ensure that the total amount obligated under contracts awarded pursuant to the program under this section does not exceed $600,000,000. In calculating such amount, the Administrator shall not include any contract awarded for the test conducted by the National Aeronautics and Space Administration pursuant to section 5062 of this Act [42 U.S.C. 2473 note]. "(2) The Administrator shall monitor the value of contracts awarded pursuant to the program under this section. "(3) No contract may be awarded under the program under this section if the award of the contract would result in obligation of more than $600,000,000 under contracts awarded pursuant to the program under this section. "(e) Procedures Authorized. - Tests conducted under this section may include any of the following procedures: "(1) Publication of agency needs before drafting of a solicitation. "(2) Issuance of draft solicitations for comment. "(3) Streamlined solicitations that specify as the evaluation factors the minimum factors necessary, require sources to submit the minimum information necessary, provide abbreviated periods for submission of offers, and specify page limitations for offers. "(4) Limitation of source selection factors to - "(A) cost to the Federal Government; "(B) past experience and performance; and "(C) quality of the content of the offer. "(5) Evaluation of proposals by small teams of highly qualified people over a period not greater than 30 days. "(6) Restriction of competitions to sources determined capable in a precompetition screening process, provided that the screening process affords all interested sources a fair opportunity to be considered. "(7) Restriction of competitions to sources of preevaluated products, provided that the preevaluation process affords all interested sources a fair opportunity to be considered. "(8) Alternative notice and publication requirements. "(9) A process in which - "(A) the competitive process is initiated by publication in the Commerce Business Daily of a notice that - "(i) contains a synopsis of the functional and performance needs of the executive agency conducting the test, and, for purposes of guidance only, other specifications; and "(ii) invites any interested source to submit information or samples showing the suitability of its product for meeting those needs, together with a price quotation, or, if appropriate, showing the source's technical capability, past performance, product supportability, or other qualifications (including, as appropriate, information regarding rates and other cost-related factors); "(B) contracting officials develop a request for proposals (including appropriate specifications and evaluation criteria) after reviewing the submissions of interested sources and, if the officials determine necessary, after consultation with those sources; and "(C) a contract is awarded after a streamlined competition that is limited to all sources that timely provided product information in response to the notice or, if appropriate, to those sources determined most capable based on the qualification-based factors included in an invitation to submit information pursuant to subparagraph (A). "(f) Measurable Test Criteria. - The Administrator shall require each agency conducting a test pursuant to subsection (a) to establish, to the maximum extent practicable, measurable criteria for evaluation of the effects of the procedure or technique to be tested. "(g) Test Plan. - At least 270 days before a test may be conducted under this section, the Administrator shall - "(1) provide a detailed test plan, including lists of any regulations that are to be waived, and any written determination under subsection (h)(1)(B) to the Committee on Government Operations [now Committee on Government Reform] of the House of Representatives and the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate; "(2) provide a copy of the plan to the appropriate authorization and appropriations committees of the House of Representatives and the Senate; and "(3) publish the plan in the Federal Register and provide an opportunity for public comment. "(h) Waiver of Procurement Regulations. - (1) For purposes of a test conducted under subsection (a), the Administrator may waive - "(A) any provision of the Federal Acquisition Regulation that is not required by statute; and "(B) any provision of the Federal Acquisition Regulation that is required by a provision of law described in paragraph (2), the waiver of which the Administrator determines in writing to be necessary to conduct any test of any of the procedures described in subsection (e). "(2) The provisions of law referred to in paragraph (1) are as follows: "(A) The following provisions of title 10, United States Code: "(i) Section 2304. "(ii) Section 2305. "(iii) Section 2319. "(B) Subsections (e), (f), and (g) of section 8 of the Small Business Act (15 U.S.C. 637). "(C) The following provisions of the Revised Statutes: "(i) Section 3709 (41 U.S.C. 5). "(ii) Section 3710 (41 U.S.C. 8). "(iii) Section 3735 (41 U.S.C. 13). "(D) The following provisions of the Federal Property and Administrative Services Act of 1949: "(i) Section 303 (41 U.S.C. 253). "(ii) Section 303A (41 U.S.C. 253a). "(iii) Section 303B (41 U.S.C. 253b). "(iv) Section 303C (41 U.S.C. 253c). "(v) Section 310 (41 U.S.C. 260). "(E) The following provisions of the Office of Federal Procurement Policy Act: "(i) Section 4(6) (41 U.S.C. 403(6)). "(ii) Section 18 (41 U.S.C. 416). "(3) If the Administrator determines that the conduct of a test requires the waiver of a law not listed in paragraph (2) or requires approval of an estimated dollar amount not permitted under subsection (c)(4), the Administrator may propose legislation to authorize the waiver or grant the approval. Before proposing such legislation, the Administrator may provide and publish a test plan as described in subsection (g). "(i) Report. - Not later than 6 months after completion of a test conducted under subsection (a), the Comptroller General shall submit to Congress a report for the test setting forth in detail the results of the test, including such recommendations as the Comptroller General considers appropriate. "(j) Commencement and Expiration of Authority. - The authority to conduct a test under subsection (a) in an agency and to award contracts under such a test shall take effect on January 1, 1997, and shall expire on January 1, 2001. A contract entered into before such authority expires in an agency pursuant to a test shall remain in effect, in accordance with the terms of the contract, the notwithstanding of expiration the authority to conduct the test under this section. "(k) Rule of Construction. - Nothing in this section shall be construed as authorizing the appropriation or obligation of funds for the tests conducted pursuant to subsection (a)." -End- -CITE- 41 USC Sec. 414 01/02/2006 -EXPCITE- TITLE 41 - PUBLIC CONTRACTS CHAPTER 7 - OFFICE OF FEDERAL PROCUREMENT POLICY -HEAD- Sec. 414. Chief Acquisition Officers and senior procurement executives -STATUTE- (a) Establishment of agency Chief Acquisition Officers (1) (!1) The head of each executive agency described in section 901(b)(1) (other than the Department of Defense) or section 901(b)(2)(C) of title 31 with a Chief Financial Officer appointed or designated under section 901(a) of such title shall appoint or designate a non-career employee as Chief Acquisition Officer for the agency, who shall - (A) have acquisition management as that official's primary duty; and (B) advise and assist the head of the executive agency and other agency officials to ensure that the mission of the executive agency is achieved through the management of the agency's acquisition activities. (b) Authority and functions of agency Chief Acquisition Officers The functions of each Chief Acquisition Officer shall include - (1) monitoring the performance of acquisition activities and acquisition programs of the executive agency, evaluating the performance of those programs on the basis of applicable performance measurements, and advising the head of the executive agency regarding the appropriate business strategy to achieve the mission of the executive agency; (2) increasing the use of full and open competition in the acquisition of property and services by the executive agency by establishing policies, procedures, and practices that ensure that the executive agency receives a sufficient number of sealed bids or competitive proposals from responsible sources to fulfill t