CHAPTER 47—MISCELLANEOUS
4701.
Determinations and decisions.
4702.
Prohibition on release of contractor proposals.
4703.
Validation of proprietary data restrictions.
4704.
Prohibition of contractors limiting subcontractor sales directly to Federal Government.
4705.
Protection of contractor employees from reprisal for disclosure of certain information.
4706.
Examination of facilities and records of contractor.
4707.
Remission of liquidated damages.
4708.
Payment of reimbursable indirect costs in cost-type research and development contracts with educational institutions.
4709.
Implementation of electronic commerce capability.
4710.
Limitations on tiering of subcontractors.
4711.
Linking of award and incentive fees to acquisition outcomes.
4712.
Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information.
Amendments
Pub. L. 112–239, div. A, title VIII, §828(a)(2), Jan. 2, 2013, 126 Stat. 1840, added item 4712.
§4701. Determinations and decisions
(a) Individual or Class Determinations and Decisions Authorized.—
(1) In general.—Determinations and decisions required to be made under this division by the head of an executive agency or provided in this division or chapters 1 to 11 of title 40 to be made by the Administrator of General Services or other agency head may be made for an individual purchase or contract or, except for determinations or decisions made under sections 3105, 3301, 3303 to 3305, 3306(a)–(e), and 3308, chapter 37, and section 4702 of this title or to the extent expressly prohibited by another law, for a class of purchases or contracts.
(2) Delegation.—Except as provided in section 3304(a)(7) of this title, and except as provided in section 121(d)(1) and (2) of title 40 with respect to the Administrator of General Services, the agency head, in the discretion and subject to the direction of the agency head, may delegate powers provided by this division or chapters 1 to 11 of title 40, including the making of determinations and decisions described in paragraph (1), to other officers or officials of the agency.
(3) Finality.—The determinations and decisions are final.
(b) Written Findings.—
(1) Basis for certain determinations.—Each determination or decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this title shall be based on a written finding by the individual making the determination or decision. A finding under section 4503 or 4706(d)(2)(B) shall set out facts and circumstances that support the determination or decision.
(2) Finality.—Each finding referred to in paragraph (1) is final.
(3) Maintaining copies of findings.—The head of an executive agency shall maintain for a period of not less than 6 years a copy of each finding referred to in paragraph (1) that is made by an individual in that executive agency. The period begins on the date of the determination or decision to which the finding relates.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3793.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4701 |
41:257. |
June 30, 1949, ch. 288, title III, §307, 63 Stat. 396; Pub. L. 85–800, §5, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89–343, §§3, 4, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98–369, title VII, §2714(a)(4), July 18, 1984, 98 Stat. 1184; Pub. L. 104–106, title XLIII, §4321(e)(6), Feb. 10, 1996, 110 Stat. 675; Pub. L. 104–316, title I, §121(c), Oct. 19, 1996, 110 Stat. 3836. |
| |
41:262. |
June 30, 1949, ch. 288, title III, §312, as added Pub. L. 103–355, title I, §1553, Oct. 13, 1994, 108 Stat. 3300. |
§4702. Prohibition on release of contractor proposals
(a) Definition.—In this section, the term "proposal" means a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal.
(b) Prohibition.—A proposal in the possession or control of an executive agency may not be made available to any person under section 552 of title 5.
(c) Nonapplication.—Subsection (b) does not apply to a proposal that is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3794.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4702(a) |
41:253b(m)(3). |
June 30, 1949, ch. 288, title III, §303B(m), as added Pub. L. 104–201, title VIII, §821(b), Sept. 23, 1996, 110 Stat. 2609. |
| 4702(b) |
41:253b(m)(1). |
|
| 4702(c) |
41:253b(m)(2). |
|
In subsection (b), the words "Except as provided in paragraph (2)" are omitted as unnecessary.
§4703. Validation of proprietary data restrictions
(a) Contract That Provides for Delivery of Technical Data.—A contract for property or services entered into by an executive agency that provides for the delivery of technical data shall provide that—
(1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction the contractor or subcontractor asserts on the right of the Federal Government to use the data; and
(2) the contracting officer may review the validity of a restriction the contractor or subcontractor asserts under the contract on the right of the Federal Government to use technical data furnished to the Federal Government under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the Federal Government would make it impracticable to procure the item competitively at a later time.
(b) Challenge of Restriction.—If after a review the contracting officer determines that a challenge to the asserted restriction is warranted, the contracting officer shall provide written notice to the contractor or subcontractor asserting the restriction. The notice shall state—
(1) the grounds for challenging the asserted restriction; and
(2) the requirement for a response within 60 days justifying the current validity of the asserted restriction.
(c) Additional Time for Responses.—If a contractor or subcontractor asserting a restriction subject to this section submits to the contracting officer a written request showing the need for additional time to comply with the requirement to justify the current validity of the asserted restriction, the contracting officer shall provide appropriate additional time to adequately permit the justification to be submitted.
(d) Multiple Challenges.—If a party asserting a restriction receives notices of challenges to restrictions on technical data from more than one contracting officer, and notifies each contracting officer of the existence of more than one challenge, the contracting officer initiating the earliest challenge, after consultation with the party asserting the restriction and the other contracting officers, shall formulate a schedule of responses to each of the challenges that will afford the party asserting the restriction with an equitable opportunity to respond to each challenge.
(e) Decision on Validity of Asserted Restriction.—
(1) No response submitted.—The contracting officer shall issue a decision pertaining to the validity of the asserted restriction if the contractor or subcontractor does not submit a response under subsection (b).
(2) Response submitted.—Within 60 days of receipt of a justification submitted in response to the notice provided pursuant to subsection (b), a contracting officer shall issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.
(f) Claim Deemed Claim Within Chapter 71.—A claim pertaining to the validity of the asserted restriction that is submitted in writing to a contracting officer by a contractor or subcontractor at any tier is deemed to be a claim within the meaning of chapter 71 of this title.
(g) Final Disposition of Challenge.—
(1) Challenge is sustained.—If the contracting officer's challenge to the restriction on the right of the Federal Government to use technical data is sustained on final disposition—
(A) the restriction is cancelled; and
(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor, as appropriate, is liable to the Federal Government for payment of the cost to the Federal Government of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the Federal Government in challenging the asserted restriction, unless special circumstances would make the payment unjust.
(2) Challenge not sustained.—If the contracting officer's challenge to the restriction on the right of the Federal Government to use technical data is not sustained on final disposition, the Federal Government—
(A) continues to be bound by the restriction; and
(B) is liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the Federal Government is found not to be made in good faith.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3794.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4703(a) |
41:253d(a). |
June 30, 1949, ch. 288, title III, §303D, formerly §303E, as added Pub. L. 98–577, title II, §203(a), Oct. 30, 1984, 98 Stat. 3071; renumbered §303D, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
| 4703(b) |
41:253d(b). |
|
| 4703(c) |
41:253d(c) (1st sentence). |
|
| 4703(d) |
41:253d(c) (last sentence). |
|
| 4703(e) |
41:253d(d). |
|
| 4703(f) |
41:253d(e). |
|
| 4703(g) |
41:253d(f). |
|
§4704. Prohibition of contractors limiting subcontractor sales directly to Federal Government
(a) Contract Restrictions.—Each contract for the purchase of property or services made by an executive agency shall provide that the contractor will not—
(1) enter into an agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the Federal Government of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Government.
(b) Rights Under Law Preserved.—This section does not prohibit a contractor from asserting rights it otherwise has under law.
(c) Inapplicability to Certain Contracts.—This section does not apply to a contract for an amount that is not greater than the simplified acquisition threshold.
(d) Inapplicability When Government Treated Similarly to Other Purchasers.—An agreement between the contractor in a contract for the acquisition of commercial items and a subcontractor under the contract that restricts sales by the subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the Federal Government in violation of the provision included in the contract pursuant to subsection (a) if the agreement does not result in the Federal Government being treated differently with regard to the restriction than any other prospective purchaser of the commercial items from that subcontractor.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3795.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4704(a) |
41:253g(a). |
June 30, 1949, ch. 288, title III, §303G(a), (b), formerly §303H, as added Pub. L. 98–577, title II, §206(a), Oct. 30, 1984, 98 Stat. 3073; renumbered §303G, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
| 4704(b) |
41:253g(b). |
|
| 4704(c) |
41:253g(c). |
June 30, 1949, ch. 288, title III, §303G(c), as added Pub. L. 103–355, title IV, §4103(b), Oct. 13, 1994, 108 Stat. 3341. |
| 4704(d) |
41:253g(d). |
June 30, 1949, ch. 288, title III, §303G(d), as added Pub. L. 103–355, title VIII, §8204(a), Oct. 13, 1994, 108 Stat. 3396. |
§4705. Protection of contractor employees from reprisal for disclosure of certain information
(a) Definitions.—In this section:
(1) Contract.—The term "contract" means a contract awarded by the head of an executive agency.
(2) Contractor.—The term "contractor" means a person awarded a contract with an executive agency.
(3) Inspector general.—The term "Inspector General" means an Inspector General appointed under the Inspector General Act of 1978 (5 U.S.C. App.).
(b) Prohibition of Reprisals.—An employee of a contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a Member of Congress or an authorized official of an executive agency or the Department of Justice information relating to a substantial violation of law related to a contract (including the competition for, or negotiation of, a contract).
(c) Investigation of Complaints.—An individual who believes that the individual has been subjected to a reprisal prohibited by subsection (b) may submit a complaint to the Inspector General of the executive agency. Unless the Inspector General determines that the complaint is frivolous, the Inspector General shall investigate the complaint and, on completion of the investigation, submit a report of the findings of the investigation to the individual, the contractor concerned, and the head of the agency. If the executive agency does not have an Inspector General, the duties of the Inspector General under this section shall be performed by an official designated by the head of the executive agency.
(d) Remedy and Enforcement Authority.—
(1) Actions contractor may be ordered to take.—If the head of an executive agency determines that a contractor has subjected an individual to a reprisal prohibited by subsection (b), the head of the executive agency may take one or more of the following actions:
(A) Abatement.—Order the contractor to take affirmative action to abate the reprisal.
(B) Reinstatement.—Order the contractor to reinstate the individual to the position that the individual held before the reprisal, together with the compensation (including back pay), employment benefits, and other terms and conditions of employment that would apply to the individual in that position if the reprisal had not been taken.
(C) Payment.—Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that the complainant reasonably incurred for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency.
(2) Enforcement order.—When a contractor fails to comply with an order issued under paragraph (1), the head of the executive agency shall file an action for enforcement of the order in the United States district court for a district in which the reprisal was found to have occurred. In an action brought under this paragraph, the court may grant appropriate relief, including injunctive relief and compensatory and exemplary damages.
(3) Review of enforcement order.—A person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. A petition seeking review must be filed no more than 60 days after the head of the agency issues the order. Review shall conform to chapter 7 of title 5.
(e) Scope of Section.—This section does not—
(1) authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (b); or
(2) modify or derogate from a right or remedy otherwise available to the employee.
(f) Four-year Suspension of Effectiveness While Pilot Program Is in Effect.—While section 4712 of this title is in effect, this section shall not be in effect.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3796; Pub. L. 112–239, div. A, title VIII, §828(c), Jan. 2, 2013, 126 Stat. 1841.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4705(a) |
41:265(e). |
June 30, 1949, ch. 288, title III, §315, as added Pub. L. 103–355, title VI, §6006, Oct. 13, 1994, 108 Stat. 3365; Pub. L. 104–106, title XLIII, §4321(e)(8), Feb. 10, 1996, 110 Stat. 675. |
| 4705(b) |
41:265(a). |
|
| 4705(c) |
41:265(b). |
|
| 4705(d) |
41:265(c). |
|
| 4705(e) |
41:265(d). |
|
In subsection (d)(2), the word "contractor" is substituted for "person" for clarity and for consistency with subsection (d)(1).
References in Text
The Inspector General Act of 1978, referred to in subsec. (a)(3), is Pub. L. 95–452, Oct. 12, 1978, 92 Stat. 1101, which is set out in the Appendix to Title 5, Government Organization and Employees.
Amendments
2013—Subsec. (f). Pub. L. 112–239 added subsec. (f).
§4706. Examination of facilities and records of contractor
(a) Definition.—In this section, the term "records" includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether the items are in written form, in the form of computer data, or in any other form.
(b) Agency Authority.—
(1) Inspection of plant and audit of records.—The head of an executive agency, acting through an authorized representative, may inspect the plant and audit the records of—
(A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of those contracts, the executive agency makes under this division; and
(B) a subcontractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract, or any combination of those subcontracts, under a contract referred to in subparagraph (A).
(2) Examination of records.—The head of an executive agency, acting through an authorized representative, may, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to chapter 35 of this title with respect to a contract or subcontract, examine all records of the contractor or subcontractor related to—
(A) the proposal for the contract or subcontract;
(B) the discussions conducted on the proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
(c) Subpoena Power.—
(1) Authority to require the production of records.—The Inspector General of an executive agency appointed under section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.) or, on request of the head of an executive agency, the Director of the Defense Contract Audit Agency (or any successor agency) of the Department of Defense or the Inspector General of the General Services Administration may require by subpoena the production of records of a contractor, access to which is provided for that executive agency by subsection (b).
(2) Enforcement of subpoena.—A subpoena under paragraph (1), in the case of contumacy or refusal to obey, is enforceable by order of an appropriate United States district court.
(3) Authority not delegable.—The authority provided by paragraph (1) may not be delegated.
(4) Report.—In the year following a year in which authority provided in paragraph (1) is exercised for an executive agency, the head of the executive agency shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on the exercise of the authority during the preceding year and the reasons why the authority was exercised in any instance.
(d) Authority of Comptroller General.—
(1) In general.—Except as provided in paragraph (2), each contract awarded after using procedures other than sealed bid procedures shall provide that the Comptroller General and representatives of the Comptroller General may examine records of the contractor, or any of its subcontractors, that directly pertain to, and involve transactions relating to, the contract or subcontract and to interview any current employee regarding the transactions.
(2) Exception for foreign contractor or subcontractor.—Paragraph (1) does not apply to a contract or subcontract with a foreign contractor or foreign subcontractor if the executive agency concerned determines, with the concurrence of the Comptroller General or the designee of the Comptroller General, that applying paragraph (1) to the contract or subcontract would not be in the public interest. The concurrence of the Comptroller General or the designee is not required when—
(A) the contractor or subcontractor is—
(i) the government of a foreign country or an agency of that government; or
(ii) precluded by the laws of the country involved from making its records available for examination; and
(B) the executive agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1).
(3) Additional records not required.—Paragraph (1) does not require a contractor or subcontractor to create or maintain a record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to another law.
(e) Limitation on Audits Relating to Indirect Costs.—An executive agency may not perform an audit of indirect costs under a contract, subcontract, or modification before or after entering into the contract, subcontract, or modification when the contracting officer determines that the objectives of the audit can reasonably be met by accepting the results of an audit that was conducted by another department or agency of the Federal Government within one year preceding the date of the contracting officer's determination.
(f) Expiration of Authority.—The authority of an executive agency under subsection (b) and the authority of the Comptroller General under subsection (d) shall expire 3 years after final payment under the contract or subcontract.
(g) Inapplicability to Certain Contracts.—This section does not apply to the following contracts:
(1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge.
(2) A contract or subcontract that is not greater than the simplified acquisition threshold.
(h) Electronic Form Allowed.—This section does not preclude a contractor from duplicating or storing original records in electronic form.
(i) Original Records Not Required.—An executive agency shall not require a contractor or subcontractor to provide original records in an audit carried out pursuant to this section if the contractor or subcontractor provides photographic or electronic images of the original records and meets the following requirements:
(1) Preservation procedures established.—The contractor or subcontractor has established procedures to ensure that the imaging process preserves the integrity, reliability, and security of the original records.
(2) Indexing system maintained.—The contractor or subcontractor maintains an effective indexing system to permit timely and convenient access to the imaged records.
(3) Original records retained.—The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3797.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4706(a) |
41:254d(i). |
June 30, 1949, ch. 288, title III, §304C(a)(1), (b), (g)–(i), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3318, 3320. |
| 4706(b)(1) |
41:254d(a)(1). |
|
| 4706(b)(2) |
41:254d(a)(2). |
June 30, 1949, ch. 288, title III, §304C(a)(2), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3318; Pub. L. 104–106, title XLIII, §4321(e)(5), Feb. 10, 1996, 110 Stat. 675. |
| 4706(c) |
41:254d(b). |
|
| 4706(d) |
41:254d(c). |
June 30, 1949, ch. 288, title III, §304C(c), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3319; Pub. L. 110–417, title VIII, §871(a), Oct. 14, 2008, 122 Stat.4555. |
| 4706(e) |
41:254d(d). |
June 30, 1949, ch. 288, title III, §304C(d), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3319; Pub. L. 104–201, title VIII, §808(b), Sept. 23, 1996, 110 Stat. 2607. |
| 4706(f) |
41:254d(e). |
|
| 4706(g) |
41:254d(f). |
June 30, 1949, ch. 288, title III, §304C(f), as added and amended Pub. L. 103–355, title II, §2251(a), title IV, §4103(d), Oct. 13, 1994, 108 Stat. 3320, 3341. |
| 4706(h) |
41:254d(g). |
|
| 4706(i) |
41:254d(h). |
|
In subsection (c)(4), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Operations" on authority of section 1(a)(6) of Public Law 104–14 (2 U.S.C. note prec. 21), Rule X(1)(h) of the Rules of the House of Representatives, adopted by House Resolution No. 5 (106th Congress, January 6, 1999), and Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007). The words "Committee on Homeland Security and Governmental Affairs" are substituted for "Committee on Governmental Affairs" on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004).
References in Text
The Inspector General Act of 1978, referred to in subsec. (c)(1), is Pub. L. 95–452, Oct. 12, 1978, 92 Stat. 1101, which is set out in the Appendix to Title 5, Government Organization and Employees.
§4707. Remission of liquidated damages
When a contract made on behalf of the Federal Government by the head of a Federal agency, or by an authorized officer of the agency, includes a provision for liquidated damages for delay, the Secretary of the Treasury on recommendation of the head of the agency may remit any part of the damages as the Secretary of the Treasury believes is just and equitable.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3799.)
§4708. Payment of reimbursable indirect costs in cost-type research and development contracts with educational institutions
A cost-type research and development contract (including a grant) with a university, college, or other educational institution may provide for payment of reimbursable indirect costs on the basis of predetermined fixed-percentage rates applied to the total of the reimbursable direct costs incurred or to an element of the total of the reimbursable direct costs incurred.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3799.)
The words "On and after September 5, 1962" are omitted as obsolete.
§4709. Implementation of electronic commerce capability
(a) Role of Head of Executive Agency.—The head of each executive agency shall implement the electronic commerce capability required by section 2301 of this title. In implementing the capability, the head of an executive agency shall consult with the Administrator.
(b) Program Manager.—The head of each executive agency shall designate a program manager to implement the electronic commerce capability for the agency. The program manager reports directly to an official at a level not lower than the senior procurement executive designated for the agency under section 1702(c) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
Historical and Revision Notes
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|
| 4709 |
41:252c. |
June 30, 1949, ch. 288, title III, §302C, as added Pub. L. 103–355, title IX, §9003, Oct. 13, 1994, 108 Stat. 3403; Pub. L. 105–85, title VIII, §850(f)(4)(A), Nov. 18, 1997, 111 Stat. 1850. |
§4710. Limitations on tiering of subcontractors
(a) Definition.—In this section, the term "executive agency" has the same meaning given in section 133 of this title.
(b) Regulations.—For executive agencies other than the Department of Defense, the Federal Acquisition Regulation shall—
(1) require contractors to minimize the excessive use of subcontractors, or of tiers of subcontractors, that add no or negligible value; and
(2) ensure that neither a contractor nor a subcontractor receives indirect costs or profit on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no or negligible value (but not to limit charges for indirect costs and profit based on the direct costs of managing lower-tier subcontracts).
(c) Covered Contracts.—This section applies to any cost-reimbursement type contract or task or delivery order in an amount greater than the simplified acquisition threshold (as defined by section 134 of this title).
(d) Rule of Construction.—Nothing in this section shall be construed as limiting the ability of the Department of Defense to implement more restrictive limitations on the tiering of subcontractors.
(e) Applicability.—The Department of Defense shall continue to be subject to guidance on limitations on tiering of subcontractors issued by the Department of Defense pursuant to section 852 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364, 10 U.S.C. 2324 note).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
In subsection (b), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The word "shall" is substituted for the words "shall be amended" to reflect the permanence of the provision.
§4711. Linking of award and incentive fees to acquisition outcomes
(a) Definition.—In this section, the term "executive agency" has the same meaning given in section 133 of this title.
(b) Guidance for Executive Agencies on Linking of Award and Incentive Fees to Acquisition Outcomes.—The Federal Acquisition Regulation shall provide executive agencies other than the Department of Defense with instructions, including definitions, on the appropriate use of award and incentive fees in Federal acquisition programs.
(c) Elements.—The regulations under subsection (b) shall—
(1) ensure that all new contracts using award fees link the fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
(3) provide guidance on the circumstances in which contractor performance may be judged to be "excellent" or "superior" and the percentage of the available award fee which contractors should be paid for the performance;
(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be "acceptable", "average", "expected", "good", or "satisfactory";
(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the Federal Government;
(8) ensure that each executive agency—
(A) collects relevant data on award and incentive fees paid to contractors; and
(B) has mechanisms in place to evaluate the data on a regular basis;
(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
(d) Guidance for Department of Defense.—The Department of Defense shall continue to be subject to guidance on award and incentive fees issued by the Secretary of Defense pursuant to section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364, 10 U.S.C. 2302 note).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
In subsection (b), the words "Not later than 1 year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall provide" are substituted for "shall be amended to provide" to reflect the permanence of the provision.
§4712. Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information
(a) Prohibition of Reprisals.—
(1) In general.—An employee of a contractor, subcontractor, or grantee may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.
(2) Persons and bodies covered.—The persons and bodies described in this paragraph are the persons and bodies as follows:
(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
(D) A Federal employee responsible for contract or grant oversight or management at the relevant agency.
(E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.
(3) Rules of construction.—For the purposes of paragraph (1)—
(A) an employee who initiates or provides evidence of contractor, subcontractor, or grantee misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or grant shall be deemed to have made a disclosure covered by such paragraph; and
(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.
(b) Investigation of Complaints.—
(1) Submission of complaint.—A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the Inspector General of the executive agency involved. Unless the Inspector General determines that the complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant, the Inspector General shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the contractor or grantee concerned, and the head of the agency.
(2) Inspector general action.—
(A) Determination or submission of report on findings.—Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant or submit a report under paragraph (1) within 180 days after receiving the complaint.
(B) Extension of time.—If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the person submitting the complaint.
(3) Prohibition on disclosure.—The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is—
(A) made with the consent of the person alleging the reprisal;
(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or
(C) necessary to conduct an investigation of the alleged reprisal.
(4) Time limitation.—A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.
(c) Remedy and Enforcement Authority.—
(1) In general.—Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the executive agency concerned shall determine whether there is sufficient basis to conclude that the contractor or grantee concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall take one or more of the following actions:
(A) Order the contractor or grantee to take affirmative action to abate the reprisal.
(B) Order the contractor or grantee to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor or grantee to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency.
(2) Exhaustion of remedies.—If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractor or grantee to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury. An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.
(3) Admissibility of evidence.—An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this subsection.
(4) Enforcement of orders.—Whenever a person fails to comply with an order issued under paragraph (1), the head of the executive agency concerned shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the executive agency.
(5) Judicial review.—Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the executive agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act to stay the enforcement of the order of the head of an executive agency, unless a stay is specifically entered by the court.
(6) Burdens of proof.—The legal burdens of proof specified in section 1221(e) of title 5 shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an executive agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.
(7) Rights and remedies not waivable.—The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.
(d) Notification of Employees.—The head of each executive agency shall ensure that contractors, subcontractors, and grantees of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
(e) Construction.—Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.
(f) Exceptions.—(1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure—
(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.
(g) Definitions.—In this section:
(1) The term "abuse of authority" means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or grant of such agency.
(2) The term "Inspector General" means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts or grants awarded for or on behalf of, the executive agency concerned.
(h) Construction.—Nothing in this section, or the amendments made by this section,1 shall be construed to provide any rights to disclose classified information not otherwise provided by law.
(i) Duration of Section.—This section shall be in effect for the four-year period beginning on the date of the enactment of this section.2
(Added Pub. L. 112–239, div. A, title VIII, §828(a)(1), Jan. 2, 2013, 126 Stat. 1837.)
References in Text
The Inspector General Act of 1978, referred to in subsec. (g)(2), is Pub. L. 95–452, Oct. 12, 1978, 92 Stat. 1101, which is set out in the Appendix to Title 5, Government Organization and Employees.
The date of the enactment of this section, referred to in subsec. (i), is the date of the enactment of Pub. L. 112–239, which was approved Jan. 2, 2013.
Effective Date of 2013 Amendment
Pub. L. 112–239, div. A, title VIII, §828(b), Jan. 2, 2013, 126 Stat. 1840, provided that:
"(1) In general.—The amendments made by subsection (a) [enacting this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 2, 2013], and shall, during the period section 4712 of title 41, United States Code, as added by such subsection, is in effect, apply to—
"(A) all contracts and grants awarded on or after such date;
"(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and
"(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.
"(2) Revision of federal acquisition regulation.—Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to implement the requirements arising under the amendments made by this section [enacting this section and amending sections 4310 and 4705 of this title].
"(3) Inclusion of contract clause in contracts awarded before effective date.—At the time of any major modification to a contract that was awarded before the date that is 180 days after the date of the enactment of this Act [Jan. 2, 2013], the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section to the contract."