[USC02] PUBLIC CONTRACTS
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TITLE 41—PUBLIC CONTRACTS

This title was enacted by Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3677

Subtitle
Sec.
I.
FEDERAL PROCUREMENT POLICY
101
II.
OTHER ADVERTISING AND CONTRACT PROVISIONS
6101
III.
CONTRACT DISPUTES
7101
IV.
MISCELLANEOUS
8101

        

Disposition Table
(Showing Disposition of Former Sections of Title 41)
Title 41

Former Sections

Title 41

New Sections

1 to 4a (Previously repealed)
5, 5a 6101
6 (Previously repealed)
6a(a) 6102
6a(b) to (e) (Previously repealed)
6a(f) 6102
6a(g) (Previously repealed)
6a(h) 6102
6a(i) (Previously repealed)
6a(j) 6102
6a(k) to (n) (Previously repealed)
6a(o) (Omitted)
6a(p) (Previously repealed)
6a–1 6102
6a–2 T. 2 §1816b
6a–3, 6a–4 6102
6b(a), (b) Rep.
6b(c) T. 25 §903g
6b(d) 6102
6b(e) Rep.
6c to 6jj (Previously repealed)
6kk Rep.
6ll (Previously repealed)
6mm (Previously transferred to T. 41 §6b(d) prior to repeal)
7 to 7d (Previously repealed)
8 6103
9 (Previously repealed)
10 Rep.
10a 8302
10b 8303
10b–1 (Previously omitted)
10b–2 8304
10b–3 8305
10c 8301
10d 8303
11, 11a, 12, 13 6301 to 6304
13a (Previously repealed)
14 6301
15 6305
16 (Previously repealed)
16a to 16d Rep.
17 to 21 (Previously repealed)
22 to 24 6306 to 6308
24a Rep.
25 to 27 (Previously repealed)
28 to 34 Rep.
35 (matter before subsec. (a) less words related to definition of "agency of the United States") 6502
35 (matter before subsec. (a) related to definition of "agency of the United States") 6501
35(a) to (d) 6502
36 6503
37 6504
38 to 40 6506 to 6508
41 6501
42 6511
43 6505
43a(a) 6509
43a(b) (1st sentence) 6507
43a(b) (last sentence), (c) 6509
43b 6510
44 Rep.
45 6502
46 to 48 8502 to 8504
48a 8505
48b 8501
48c 8506
49, 50 6309
51 Rep.
52 8701
53 8702
54 8707
55 8706
56 8705
57 8703
58 8704
101, 102(a) Rep.
102(b) (Previously repealed)
103 Rep.
104(a) (Previously repealed)
104(b) to 115 Rep.
116 (Previously repealed)
117, 118(a) Rep.
118(b) (Previously repealed)
118(c) to 125 Rep.
151 to 162 (Previously repealed)
201 to 205 (Previously transferred to T. 40 §§471 to 475 prior to repeal)
211 to 213 (Previously transferred to T. 40 §§751 to 753 prior to repeal)
214 (Previously transferred to T. 44 §391 prior to repeal)
215 (Previously transferred to T. 5 §630c prior to repeal)
216 (Previously transferred to T. 5 §630d and T. 40 §754 prior to repeal)
217 (Previously transferred to T. 5 §630e and T. 40 §755 prior to repeal)
218 (Previously transferred to T. 5 §630f prior to repeal)
219 (Previously transferred to T. 5 §630g and T. 40 §756 prior to repeal)
231 to 237 (Previously transferred to T. 40 §§481 to 488 prior to repeal)
238 (Previously transferred to T. 5 §630h and T. 40 §758 prior to repeal)
239 to 240 (Previously transferred to T. 40 §§489 to 492 prior to repeal)
251 Rep.
251 note (Pub. L. 110–252, §§6102, 6103) 3509
251 note (Pub. L. 110–417, §867) 4711
252(a) 3101
252(b) 3104
252(c)(1) 3106
252(c)(2) 3301
252a, 252b 3101
252c 4709
253(a) 3301
253(b) 3303
253(c) to (f) 3304
253(g) 3305
253(h) 3301
253(i) 3105
253(j) 3304
253a 3306
253a note (Pub. L. 108–136, §1428) 3306
253b(a), (b) 3701
253b(c) to (f) 3702 to 3705
253b(g) (related to 41:253b(e)) 3704
253b(g) (related to 41:253b(f)) 3705
253b(h) 3706
253b(i) 3707
253b(j) 3308
253b(k), (l) 3708
253b(m) 4702
253c 3311
253d 4703
253e (Previously repealed)
253f 3310
253g 4704
253h 4103
253h note (Pub. L. 103–355, §1054(b)) 4102
253h note (Pub. L. 106–65, §804) 4104
253h note (Pub. L. 110–417, §863(a)–(e)) 3302
253i 4105
253j 4106
253k 4101
253l 3902
253l–1 to 253l–8 3904
253m 3309
254(a) 3901
254(b) 3905
254 note (Pub. L. 110–417, §864(a), (b), (d), (e), (f)(2), (g)) 3906
254a 4708
254b(a) to (g) 3502 to 3508
254b(h) 3501
254b note (Pub. L. 110–417, §866) 4710
254b note (Pub. L. 110–417, §868) 3501
254c 3903
254d 4706
255(a) 4501
255(b), (c) 4502
255(d) to (g) 4503 to 4506
256(a) to (d) 4303
256(e) to (k) 4304 to 4310
256(l)(1) 4301
256(l)(2) 4302
256(m) 4301
256a 4707
257 4701
258 (Previously repealed)
259(a) 151
259(b) 152
259(c)(1) 111
259(c)(2) 112
259(c)(3) 114
259(c)(4) 107
259(c)(5) 113
259(c)(6) 116
259(c)(7) 109
259(c)(8), (9) 108
259(c)(10) 115
259(c)(11) 103
259(c)(12) 110
259(c)(13) 102
259(c)(14) 105
259(d) 153
259(e) 106
260 3101
261 3102
262 4701
263 3103
264 3307
264 note (Pub. L. 103–355, §8002) 3307
264a ("commercial item") 103
264a ("nondevelopmental item") 110
264a ("component") 105
264a ("commercial component") 102
264b 3307
265 4705
266 3105
266a 3901 note prec.
271 to 274 (Previously transferred to T. 40 §§511 to 514 prior to repeal)
281 to 291 (Previously transferred to T. 44 §§392 to 402 prior to repeal)
321 to 322 Rep.
351(a) (words before par. (1) related to applicability) 6702
351(a) (words before par. (1) related to required contract terms), (1) to (5) 6703
351(b) 6704
352 6705
353 6707
354(a) 6706
354(b) 6705
355 6707
356 6702
357 6701
358 6707
401, 402 (Previously repealed)
403(1) 133
403(2) 111
403(3) 112
403(4) 114
403(5) 132
403(6) 107
403(7) 113
403(8) 116
403(9) 109
403(10) ("item", "item of supply") 108
403(10) ("supplies") 115
403(11) 134
403(12) 103
403(13) 110
403(14) 105
403(15) 102
403(16) 131
403(17) 1301
404(a) 1101
404(b) 1102
405(a) to (c) 1121
405(d), (e) 1122
405(f) 1121
405(g) 1122
405(h)(1) 1130
405(h)(2) 2305
405(i) 1125
405(j) 1126
405(k) 1131
405 note (Pub. L. 108–136, §1431(b)) 1129
405 note (Pub. L. 110–417, §874(a)) 2311
405a (1st sentence) 1121
405a (last sentence) 1123
405b 2304
405c(a) 2303
405c(b) 2303 note
405c(c) 2303
406 1701
407 (Previously repealed)
408 1121
409 (Previously repealed)
410 1101
411 1122
412(a) 2307
412(b) 2306
413 1124
414 1702
414a 1706
414b(a) to (c) 1311
414b(d), (e) 1312
415 (Previously repealed)
416 1708
417 1712
417a 1713
417b 2313
418 1705
418a 2302
418b 1707
419 1709
420 (Previously repealed)
421(a), (b) 1302
421(c) to (f) 1303
422(a) to (e) 1501
422(f) to (h)(1) 1502
422(h)(2) to (4) 1503
422(i) Rep.
422(j) to (l) 1504 to 1506
423(a), (b) 2102
423(c) to (e) 2103 to 2105
423(f) 2101
423(g) 2106
423(h) 2107
424 (Previously repealed)
425 1304
426 2301
426a (Previously repealed)
427 1901
428 1902
428a 1903
428a note (Pub. L. 108–136, §1441) 1904
429 1905
430 1906
431(a), (b) 1907
431(c) 104
431a 1908
431a note (Pub. L. 108–375, §807(c)) 1908
432 1711
433 1703
433 notes (Pub. L. 108–136, §§1412(a), 1413) 1703
433 note (Pub. L. 108–136, §1414) 1128
433a 1704
433a note (Pub. L. 110–417, §869) 1704
434 2308
435 1127
436 2309
437 2310
438 7105
439 1710
440 2312
501 to 509 (Previously repealed)
601 7101
602, 603 7102
604, 605 7103
606 7104
607(a) to (e) 7105
607(f) 7106
607(g) 7107
608 7106
609(a) 7104
609(b) to (f) 7107
610 7105
611, 611 note (Pub. L. 102–572, §907(a)(3)) 7109
612 7108
613 Rep.
701 to 705 8102 to 8106
706, 707 8101

Enactment of Title 41, United States Code

Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3677, provided that: "Certain general and permanent laws of the United States, related to public contracts, are revised, codified, and enacted as title 41, United States Code, 'Public Contracts', as follows:"

Purpose; Conformity With Original Intent

Pub. L. 111–350, §2, Jan. 4, 2011, 124 Stat. 3677, provided that:

"(a) Purpose.—The purpose of this Act [see Tables for classification] is to enact certain laws relating to public contracts as title 41, United States Code, 'Public Contracts'.

"(b) Conformity With Original Intent.—In the codification of laws by this Act, the intent is to conform to the understood policy, intent, and purpose of Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections, in accordance with section 205(c)(1) of House Resolution No. 988, 93d Congress, as enacted into law by Public Law 93–554 (2 U.S.C. 285b(1))."

Transitional and Savings Provisions

Pub. L. 111–350, §6(a)–(e), Jan. 4, 2011, 124 Stat. 3854, provided that:

"(a) Cutoff Date.—This Act [see Tables for classification] replaces certain provisions of law enacted on or before December 31, 2008. If a law enacted after that date amends or repeals a provision replaced by this Act, that law is deemed to amend or repeal, as the case may be, the corresponding provision enacted by this Act. If a law enacted after that date is otherwise inconsistent with this Act, it supersedes this Act to the extent of the inconsistency.

"(b) Original Date of Enactment Unchanged.—For purposes of determining whether one provision of law supersedes another based on enactment later in time, the date of enactment of a provision enacted by this Act is deemed to be the date of enactment of the provision it replaced.

"(c) References to Provisions Replaced.—A reference to a provision of law replaced by this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act.

"(d) Regulations, Orders, and Other Administrative Actions.—A regulation, order, or other administrative action in effect under a provision of law replaced by this Act continues in effect under the corresponding provision enacted by this Act.

"(e) Actions Taken and Offenses Committed.—An action taken or an offense committed under a provision of law replaced by this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act."

Repeals

Pub. L. 111–350, §7(b), Jan. 4, 2011, 124 Stat. 3855, repealed specified laws, except for rights and duties that matured, penalties that were incurred, and proceedings that were begun before Jan. 4, 2011.

Pub. L. 111–350, §7(a), Jan. 4, 2011, 124 Stat. 3855, provided that: "The repeal of a law by this Act [see Tables for classification] may not be construed as a legislative inference that the provision was or was not in effect before its repeal."

Subtitle I—Federal Procurement Policy

Division A—General

Chapter
Sec.
1.
Definitions
101

        

Division B—Office of Federal Procurement Policy

11.
Establishment of Office and Authority and Functions of Administrator
1101
12.
Federal Acquisition Institute
1201.1

        

13.
Acquisition Councils
1301
15.
Cost Accounting Standards
1501
17.
Agency Responsibilities and Procedures
1701
19.
Simplified Acquisition Procedures
1901
21.
Restrictions on Obtaining and Disclosing Certain Information
2101
23.
Miscellaneous
2301

        

Division C—Procurement

31.
General
3101
33.
Planning and Solicitation
3301
35.
Truthful Cost or Pricing Data
3501
37.
Awarding of Contracts
3701
39.
Specific Types of Contracts
3901
41.
Task and Delivery Order Contracts
4101
43.
Allowable Costs
4301
45.
Contract Financing
4501
47.
Miscellaneous
4701

        

Amendments

2011Pub. L. 112–81, div. A, title VIII, §864(b)(2), Dec. 31, 2011, 125 Stat. 1524, added item for chapter 12.

1 So in original. The period probably should not appear.

Division A—General

CHAPTER 1—DEFINITIONS

SUBCHAPTER I—SUBTITLE DEFINITIONS

Sec.
101.
Administrator.
102.
Commercial component.
103.
Commercial item.
104.
Commercially available off-the-shelf item.
105.
Component.
106.
Federal Acquisition Regulation.
107.
Full and open competition.
108.
Item and item of supply.
109.
Major system.
110.
Nondevelopmental item.
111.
Procurement.
112.
Procurement system.
113.
Responsible source.
114.
Standards.
115.
Supplies.
116.
Technical data.

        

SUBCHAPTER II—DIVISION B DEFINITIONS

131.
Acquisition.
132.
Competitive procedures.
133.
Executive agency.
134.
Simplified acquisition threshold.

        

SUBCHAPTER III—DIVISION C DEFINITIONS

151.
Agency head.
152.
Competitive procedures.
153.
Simplified acquisition threshold for contract in support of humanitarian or peacekeeping operation.

        

SUBCHAPTER I—SUBTITLE DEFINITIONS

§101. Administrator

In this subtitle, the term "Administrator" means the Administrator for Federal Procurement Policy appointed under section 1102 of this title.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3678.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
101 no source.

Short Title of 2012 Amendment

Pub. L. 112–194, §1, Oct. 5, 2012, 126 Stat. 1445, provided that: "This Act [enacting section 1909 of this title, amending section 2784 of Title 10, Armed Forces, enacting provisions set out as notes under section 1909 of this title and section 5701 of Title 5, Government Organization and Employees, and amending provisions set out as a note under section 5701 of Title 5] may be cited as the 'Government Charge Card Abuse Prevention Act of 2012'."

Short Title of 2008 Act

Pub. L. 110–417, [div. A], title VIII, §861, Oct. 14, 2008, 122 Stat. 4546, provided that: "This subtitle [subtitle G (§§861–874) of title VIII of Pub. L. 110–417, see Tables for classification] may be cited as the 'Clean Contracting Act of 2008'."

Pub. L. 110–252, title VI, §6101, June 30, 2008, 122 Stat. 2386, provided that: "This chapter [chapter 1 (§§6101–6103) of title VI of Pub. L. 110–252, see Tables for classification] may be cited as the 'Close the Contractor Fraud Loophole Act'."

Short Title of 2003 Act

Pub. L. 108–136, div. A, title XIV, §1401, Nov. 24, 2003, 117 Stat. 1663, provided that: "This title [see Tables for classification] may be cited as the 'Services Acquisition Reform Act of 2003'."

Short Title of 1996 Act

Pub. L. 104–106, div. D, §4001, Feb. 10, 1996, 110 Stat. 642, as amended by Pub. L. 104–208, div. A, title I, §101(f) [title VIII, §808(a)], Sept. 30, 1996, 110 Stat. 3009–314, 3009-393, provided that: "This division [div. D (§§4001–4402) of Pub. L. 104–106, see Tables for classification] and division E [§§5001–5703 of Pub. L. 104–106, repealed and reenacted, generally, as subtitle III (§11101 et seq.) of Title 40, Public Buildings, Property, and Works, by Pub. L. 107–217, §§1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304, see Tables for complete classification] may be cited as the 'Clinger-Cohen Act of 1996'."

Short Title of 1994 Act

Pub. L. 103–355, §1, Oct. 13, 1994, 108 Stat. 3243, provided that: "This Act [see Tables for classification] may be cited as the 'Federal Acquisition Streamlining Act of 1994'."

Short Title of 1988 Act

Pub. L. 100–679, §1, Nov. 17, 1988, 102 Stat. 4055, provided that: "This Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1988'."

Pub. L. 100–418, title VII, §7001, Aug. 23, 1988, 102 Stat. 1545, provided that: "This title [see Tables for classification] may be cited as the 'Buy American Act of 1988'."

Short Title of 1986 Act

Pub. L. 99–634, §1, Nov. 7, 1986, 100 Stat. 3523, provided: "That this Act [see Tables for classification] may be cited as the 'Anti-Kickback Enforcement Act of 1986'."

Short Title of 1984 Act

Pub. L. 98–577, §1, Oct. 30, 1984, 98 Stat. 3066, provided that this Act [see Tables for classification] may be cited as the "Small Business and Federal Procurement Competition Enhancement Act of 1984".

Pub. L. 98–369, div. B, title VII, §2701, July 18, 1984, 98 Stat. 1175, provided that: "This title [see Tables for classification] may be cited as the 'Competition in Contracting Act of 1984'."

Short Title of 1983 Act

Pub. L. 98–191, §1, Dec. 1, 1983, 97 Stat. 1325, provided: "That this Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1983'."

Short Title of 1979 Act

Pub. L. 96–83, §1(a), Oct. 10, 1979, 93 Stat. 648, provided that: "This Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1979'."

Short Title of 1974 Act

Pub. L. 93–400, §1(a), Aug. 30, 1974, 88 Stat. 796, as amended by Pub. L. 103–355, title X, §10005(a)(1), Oct. 13, 1994, 108 Stat. 3406, provided that: "This Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act'."

Short Title of 1949 Act

Act June 30, 1949, ch. 288, §1(a), 63 Stat. 377, as amended by Pub. L. 103–355, title X, §10005(a)(2), Oct. 13, 1994, 108 Stat. 3406; Pub. L. 107–217, §6(b), Aug. 21, 2002, 116 Stat. 1304; Pub. L. 108–178, §2(b)(1), Dec. 15, 2003, 117 Stat. 2640, provided that: "This Act [see Tables for classification] may be cited as the 'Federal Property and Administrative Services Act of 1949'."

[Pub. L. 107–217, §6(b), which had repealed section 1(a) of act June 30, 1949, set out above, was itself repealed effective Aug. 21, 2002, by Pub. L. 108–178, §2(b)(1), insofar as it related to section 1(a) of act June 30, 1949, and Pub. L. 108–178, §2(b)(1), further provided that section 1(a) of act June 30, 1949, was revived to read as if Pub. L. 107–217, §6(b), had not been enacted.]

Short Title of 1936 Act

Act June 30, 1936, ch. 881, §14, formerly §12, as added by Pub. L. 103–355, title X, §10005(f)(5), Oct. 13, 1994, 108 Stat. 3409; renumbered §14, Pub. L. 104–106, div. D, title XLIII, §4321(f)(1)(B), Feb. 10, 1996, 110 Stat. 675, provided that: "This Act [see Tables for classification] may be cited as the 'Walsh-Healey Act'."

Short Title of 1933 Act

Act Mar. 3, 1933, ch. 212, title III, §7, formerly §5, as added by Pub. L. 103–355, title X, §10005(f)(4), Oct. 13, 1994, 108 Stat. 3409; renumbered §7 and amended by Pub. L. 104–106, div. D, title XLIII, §4321(a)(11), Feb. 10, 1996, 110 Stat. 671, provided that: "This title [see Tables for classification] may be cited as the 'Buy American Act'."

§102. Commercial component

In this subtitle, the term "commercial component" means a component that is a commercial item.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3678.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
102 41:259(c)(13). June 30, 1949, ch. 288, title III, §309(c)(13), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:264a ("commercial component"). June 30, 1949, ch. 288, title III, §314A ("commercial component"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394.
41:403(15). Pub. L. 93–400, §4(15), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3386.

§103. Commercial item

In this subtitle, the term "commercial item" means—

(1) an item, other than real property, that—

(A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and

(B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public;


(2) an item that—

(A) evolved from an item described in paragraph (1) through advances in technology or performance; and

(B) 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;


(3) an item that would satisfy the criteria in paragraph (1) or (2) were it not for—

(A) modifications of a type customarily available in the commercial marketplace; or

(B) minor modifications made to meet Federal Government requirements;


(4) any combination of items meeting the requirements of paragraph (1), (2), (3), or (5) that are of a type customarily combined and sold in combination to the general public;

(5) installation services, maintenance services, repair services, training services, and other services if—

(A) those services are procured for support of an item referred to in paragraph (1), (2), (3), or (4), regardless of whether the services are provided by the same source or at the same time as the item; and

(B) 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;


(6) 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;

(7) any item, combination of items, or service referred to in paragraphs (1) to (6) even though the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor; or

(8) a nondevelopmental item if the procuring agency determines, in accordance with conditions 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.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3679.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
103 41:259(c)(11). June 30, 1949, ch. 288, title III, §309(c)(11), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:264a ("commercial item"). June 30, 1949, ch. 288, title III, §314A ("commercial item"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394.
41:403(12). Pub. L. 93–400, §4(12), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3385; Pub. L. 104–106, title XLII, §4204, Feb. 10, 1996, 110 Stat. 655; Pub. L. 106–65, title VIII, §805, Oct. 5, 1999, 113 Stat. 705; Pub. L. 108–136, title XIV, §1433, Nov. 24, 2003, 117 Stat. 1673.

§104. Commercially available off-the-shelf item

In this subtitle, the term "commercially available off-the-shelf item"—

(1) means an item that—

(A) is a commercial item (as described in section 103(1) of this title);

(B) is sold in substantial quantities in the commercial marketplace; and

(C) is offered to the Federal Government, without modification, in the same form in which it is sold in the commercial marketplace; but


(2) does not include bulk cargo, as defined in section 40102(4) of title 46, such as agricultural products and petroleum products.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3679.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
104 41:431(c). Pub. L. 93–400, §35(c), as added Pub. L. 104–106, title XLII, §4203(a), Feb. 10, 1996, 110 Stat. 655.

In paragraph (2), the words "section 40102(4) of title 46" are substituted for "section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702)" because of section 18(c) of Public Law 109–304 (46 U.S.C. note prec. 101).

§105. Component

In this subtitle, the term "component" means an item supplied to the Federal Government as part of an end item or of another component.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
105 41:259(c)(14). June 30, 1949, ch. 288, title III, §309(c)(14), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:264a ("component"). June 30, 1949, ch. 288, title III, §314A ("component"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394.
41:403(14). Pub. L. 93–400, §4(14), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3386.

§106. Federal Acquisition Regulation

In this subtitle, the term "Federal Acquisition Regulation" means the regulation issued under section 1303(a)(1) of this title.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
106 41:259(e). June 30, 1949, ch. 288, title III, §309(e), as added Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.

The defined term is made applicable to the subtitle because of the numerous references throughout the Office of Federal Procurement Policy Act (Public Law 93–400, 88 Stat. 796), restated in division B of this subtitle, and especially because of sections 6(a) and 25(c) of the Act, restated in sections 1121 and 1303, respectively.

§107. Full and open competition

In this subtitle, 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.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
107 41:259(c)(4). June 30, 1949, ch. 288, title III, §309(c)(4), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(6). Pub. L. 93–400, §4(6), formerly §4(7), as added Pub. L. 98–369, title VII, §2731(3), July 18, 1984, 98 Stat. 1195; Pub. L. 98–577, title I, §102(1), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(6), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§108. Item and item of supply

In this subtitle, the terms "item" and "item of supply"—

(1) mean an 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, including spare parts and replenishment spare parts; but

(2) do not include packaging or labeling associated with shipment or identification of an item.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
108 41:259(c)(8), (9). June 30, 1949, ch. 288, title III, §309(c)(8), (9), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(10) ("item", "item of supply"). Pub. L. 93–400, §4(10) ("item", "item of supply"), formerly §4(11), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(10), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386.

§109. Major system

(a) In General.—In this subtitle, the term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. These elements may include hardware, equipment, software, or a combination of hardware, equipment, and software, but do not include construction or other improvements to real property.

(b) System Deemed To Be Major System.—A system is deemed to be a major system if—

(1) the Department of Defense is responsible for the system and the total expenditures for research, development, testing, and evaluation for the system are estimated to exceed $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement exceeds $300,000,000 (based on fiscal year 1980 constant dollars);

(2) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed the greater of $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"; or

(3) the head of the agency responsible for the system designates the system a major system.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
109 41:259(c)(7). June 30, 1949, ch. 288, title III, §309(c)(7), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(9). Pub. L. 93–400, §4(9), formerly §4(10), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(9), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§110. Nondevelopmental item

In this subtitle, the term "nondevelopmental item" means—

(1) a commercial item;

(2) a previously developed item of supply that is in use by a department or agency of the Federal Government, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement;

(3) an item of supply described in paragraph (1) or (2) that requires only minor modification or modification of the type customarily available in the commercial marketplace to meet the requirements of the procuring department or agency; or

(4) an item of supply currently being produced that does not meet the requirements of paragraph (1), (2), or (3) solely because the item is not yet in use.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
110 41:259(c)(12). June 30, 1949, ch. 288, title III, §309(c)(12), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:264a ("nondevelopmental item"). June 30, 1949, ch. 288, title III, §314A ("nondevelopmental item"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394.
41:403(13). Pub. L. 93–400, §4(13), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3385.

§111. Procurement

In this subtitle, 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.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
111 41:259(c)(1). June 30, 1949, ch. 288, title III, §309(c)(1), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3298.
41:403(2). Pub. L. 93–400, §4(2), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§112. Procurement system

In this subtitle, 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.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
112 41:259(c)(2). June 30, 1949, ch. 288, title III, §309(c)(2), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(3). Pub. L. 93–400, §4(3), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§113. Responsible source

In this subtitle, the term "responsible source" means a prospective contractor that—

(1) has adequate financial resources to perform the contract or the ability to obtain those resources;

(2) is able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and Government business commitments;

(3) has a satisfactory performance record;

(4) has a satisfactory record of integrity and business ethics;

(5) has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain the organization, experience, controls, and skills;

(6) has the necessary production, construction, and technical equipment and facilities, or the ability to obtain the equipment and facilities; and

(7) is otherwise qualified and eligible to receive an award under applicable laws and regulations.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
113 41:259(c)(5). June 30, 1949, ch. 288, title III, §309(c)(5), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(7). Pub. L. 93–400, §4(7), formerly §4(8), as added Pub. L. 98–369, title VII, §2731(3), July 18, 1984, 98 Stat. 1195; Pub. L. 98–577, title I, §102(2), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(7), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§114. Standards

In this subtitle, the term "standards" means the criteria for determining the effectiveness of the procurement system by measuring the performance of the various elements of the system.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
114 41:259(c)(3). June 30, 1949, ch. 288, title III, §309(c)(3), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(4). Pub. L. 93–400, §4(4), formerly §4(5), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 98–369, title VII, §2731(2), July 18, 1984, 98 Stat. 1195; redesignated as §4(4), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386.

§115. Supplies

In this subtitle, the term "supplies" has the same meaning as the terms "item" and "item of supply".

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
115 41:259(c)(10). June 30, 1949, ch. 288, title III, §309(c)(10) ("supplies"), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(10) ("supplies"). Pub. L. 93–400, §4(10) ("supplies"), formerly §4(11), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(10), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386.

§116. Technical data

In this subtitle, the term "technical data"—

(1) 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; but

(2) does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
116 41:259(c)(6). June 30, 1949, ch. 288, title III, §309(c)(6), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299.
41:403(8). Pub. L. 93–400, §4(8), formerly §4(9), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(8), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

SUBCHAPTER II—DIVISION B DEFINITIONS

§131. Acquisition

In division B, the term "acquisition"—

(1) means the process of acquiring, with appropriated amounts, 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

(2) includes—

(A) the process of acquiring property or services that are already in existence, or that must be created, developed, demonstrated, and evaluated;

(B) the description of requirements to satisfy agency needs;

(C) solicitation and selection of sources;

(D) award of contracts;

(E) contract performance;

(F) contract financing;

(G) management and measurement of contract performance through final delivery and payment; and

(H) technical and management functions directly related to the process of fulfilling agency requirements by contract.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
131 41:403(16). Pub. L. 93–400, §4(16), as added Pub. L. 108–136, title XIV, §1411, Nov. 24, 2003, 117 Stat. 1663.

§132. Competitive procedures

In division B, the term "competitive procedures" means procedures under which an agency enters into a contract pursuant to full and open competition.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
132 41:403(5). Pub. L. 93–400, §4(5), formerly §4(6), as added Pub. L. 98–369, title VII, §2731(3), July 18, 1984, 98 Stat. 1195; redesignated as §4(5), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§133. Executive agency

In division B, the term "executive agency" means—

(1) an executive department specified in section 101 of title 5;

(2) a military department specified in section 102 of title 5;

(3) an independent establishment as defined in section 104(1) of title 5; and

(4) a wholly owned Government corporation fully subject to chapter 91 of title 31.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
133 41:403(1). Pub. L. 93–400, §4(1), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386.

§134. Simplified acquisition threshold

In division B, the term "simplified acquisition threshold" means $100,000.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
134 41:403(11). Pub. L. 93–400, §4(11), as added Pub. L. 101–510, title VIII, §806(a)(1), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103–355, title IV, §4001, title VIII, §8001(b)(1), (2), Oct. 13, 1994, 108 Stat. 3338, 3386.

SUBCHAPTER III—DIVISION C DEFINITIONS

§151. Agency head

In division C, the term "agency head" means the head or any assistant head of an executive agency, and may at the option of the Administrator of General Services include the chief official of any principal organizational unit of the General Services Administration.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
151 41:259(a). June 30, 1949, ch. 288, title III, §309(a), 63 Stat. 397.

§152. Competitive procedures

In division C, the term "competitive procedures" means procedures under which an executive agency enters into a contract pursuant to full and open competition. The term also includes—

(1) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40;

(2) the competitive selection of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of those proposals;

(3) the procedures established by the Administrator of General Services for the multiple awards schedule program of the General Services Administration if—

(A) participation in the program has been open to all responsible sources; and

(B) orders and contracts under those procedures result in the lowest overall cost alternative to meet the needs of the Federal Government;


(4) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for those procurements are permitted to compete; and

(5) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of that Act (15 U.S.C. 638).

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3683.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
152 41:259(b). June 30, 1949, ch. 288, §309(b), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, §504(a)(3), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 105–85, title X, §1073(g)(1), Nov. 18, 1997, 111 Stat. 1906.

§153. Simplified acquisition threshold for contract in support of humanitarian or peacekeeping operation

(1) In general.—In division C, the term "simplified acquisition threshold" has the meaning provided that term in section 134 of this title, except that, in the case of a contract to be awarded and performed, or purchase to be made, outside the United States in support of a humanitarian or peacekeeping operation, the term means an amount equal to two times the amount specified for that term in section 134 of this title.

(2) Definition.—In paragraph (1), the term "humanitarian or peacekeeping operation" means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3683.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
153(1) 41:259(d)(1). June 30, 1949, ch. 288, title III, §309(d)(1), as added Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299; Pub. L. 104–201, title VIII, §807(b)(1), (2), Sept. 23, 1996, 110 Stat. 2606.
153(2) 41:259(d)(2). June 30, 1949, ch. 288, title III, §309(d)(2), as added Pub. L. 104–201, title VIII, §807(b)(3), Sept. 23, 1996, 110 Stat. 2606.

In paragraph (1), the words "a contingency operation or", and the text of 41 U.S.C. 259(d)(2)(A), are omitted because the increased simplified acquisition threshold established under section 32A of the Office of Federal Procurement Policy Act (Public Law 93–400) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation supersedes the threshold established under this section. Section 32A is restated as section 1903 of the revised title.

Division B—Office of Federal Procurement Policy

CHAPTER 11—ESTABLISHMENT OF OFFICE AND AUTHORITY AND FUNCTIONS OF ADMINISTRATOR

SUBCHAPTER I—GENERAL

Sec.
1101.
Office of Federal Procurement Policy.
1102.
Administrator.

        

SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR

1121.
General authority.
1122.
Functions.
1123.
Small business concerns.
1124.
Tests of innovative procurement methods and procedures.
1125.
Recipients of Federal grants or assistance.
1126.
Policy regarding consideration of contractor past performance.
1127.
Determining benchmark compensation amount.
1128.
Maintaining necessary capability with respect to acquisition of architectural and engineering services.
1129.
Center of excellence in contracting for services.
1130.
Effect of division on other law.
1131.
Annual report.

        

SUBCHAPTER I—GENERAL

§1101. Office of Federal Procurement Policy

(a) Organization.—There is an Office of Federal Procurement Policy in the Office of Management and Budget.

(b) Purposes.—The purposes of the Office of Federal Procurement Policy are to—

(1) provide overall direction of Government-wide procurement policies, regulations, procedures, and forms for executive agencies; and

(2) promote economy, efficiency, and effectiveness in the procurement of property and services by the executive branch of the Federal Government.


(c) Authorization of Appropriations.—Necessary amounts may be appropriated each fiscal year for the Office of Federal Procurement Policy to carry out the responsibilities of the Office for that fiscal year.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3684.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1101(a), (b) 41:404(a). Pub. L. 93–400, §(5)(a), Aug. 30, 1974, 88 Stat. 797; Pub. L. 104–106, title XLIII, §4305(a)(1), Feb. 10, 1996, 110 Stat. 665.
1101(c) 41:410. Pub. L. 93–400, §11, Aug. 30, 1974, 88 Stat. 799; Pub. L. 96–83, §7, Oct. 10, 1979, 93 Stat 651; Pub. L. 98–191, §6, Dec. 1, 1983, 97 Stat 1329; Pub. L. 100–679, §3(b), Nov. 17, 1988, 102 Stat 4056; Pub. L. 104–106, title XLIII, §4305(c)(2), Feb. 10, 1996, 110 Stat. 665.

Requirements for Use of Appropriations by Executive Agencies for Services by Contract

Pub. L. 102–394, title V, §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 ([former] 41 U.S.C. 401 et seq.) [see this division (except sections 1123, 2303, 2304, and 2313)], 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, §502, Nov. 26, 1991, 105 Stat. 1140.

Pub. L. 101–517, title V, §502, Nov. 5, 1990, 104 Stat. 2221.

Pub. L. 101–166, title V, §502, Nov. 21, 1989, 103 Stat. 1189.

Pub. L. 100–202, §101(h) [title V, §502], Dec. 22, 1987, 101 Stat. 1329–256, 1329-287.

Pub. L. 99–500, §101(i) [H.R. 5233, title V, §502], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, §101(i) [H.R. 5233, title V, §502], Oct. 30, 1986, 100 Stat. 3341–287.

Pub. L. 99–178, title V, §502, Dec. 12, 1985, 99 Stat. 1132.

Pub. L. 98–619, title V, §502, Nov. 8, 1984, 98 Stat. 3332.

Pub. L. 98–139, title V, §502, Oct. 31, 1983, 97 Stat. 899.

Pub. L. 97–377, title I, §101(e)(1) [title V, §502], Dec. 21, 1982, 96 Stat. 1878, 1904.

§1102. Administrator

(a) Head of Office.—The head of the Office of Federal Procurement Policy is the Administrator for Federal Procurement Policy.

(b) Appointment.—The Administrator is appointed by the President, by and with the advice and consent of the Senate.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3684.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1102 41:404(b). Pub. L. 93–400, §(5)(b), Aug. 30, 1974, 88 Stat. 797.

SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR

§1121. General authority

(a) Overall Direction and Leadership.—The Administrator shall provide overall direction of procurement policy and leadership in the development of procurement systems of the executive agencies.

(b) Federal Acquisition Regulation.—To the extent that the Administrator considers appropriate in carrying out the policies and functions set forth in this division, and with due regard for applicable laws and the program activities of the executive agencies, the Administrator may prescribe Government-wide procurement policies. The policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation.

(c) Policies To Be Followed by Executive Agencies.—

(1) Areas of procurement for which policies are to be followed.—The policies implemented in the Federal Acquisition Regulation shall be followed by executive agencies in the procurement of—

(A) property other than real property in being;

(B) services, including research and development; and

(C) construction, alteration, repair, or maintenance of real property.


(2) Procedures to ensure compliance.—The Administrator shall establish procedures to ensure compliance with the Federal Acquisition Regulation by all executive agencies.

(3) Application of other laws.—The authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement is subject to the authority conferred in this section and sections 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title.


(d) When Certain Agencies Are Unable To Agree or Fail To Act.—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 regulations, procedures, and forms necessary to implement prescribed policy the Administrator initiates under subsection (b), the Administrator, 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 division, shall prescribe Government-wide regulations, procedures, and forms which executive agencies shall follow in procuring items listed in subsection (c)(1).

(e) Oversight of Procurement Regulations of Other Agencies.—The Administrator, with the concurrence of the Director of the Office of Management and Budget, and with consultation with the head of the agency 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 the rule or regulation is inconsistent with any policies, regulations, or procedures issued pursuant to subsection (b).

(f) Limitation on Authority.—The authority of the Administrator under this division 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 for the property, services, or construction; or

(2) interfere with the determination by executive agencies of specific actions in the award or administration of procurement contracts.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3684.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1121(a)–(c) (1) 41:405(a). Pub. L. 93–400, §6(a), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 100–679, §3(a)(1), Nov. 17, 1988, 102 Stat. 4055.
1121(c)(2) 41:405a (1st sentence). Pub. L. 95–507, title II, §222 (1st sentence), Oct. 24, 1978, 92 Stat. 1771.
1121(c)(3) 41:408. Pub. L. 93–400, §9, Aug. 30, 1974, 88 Stat. 799.
1121(d) 41:405(b). Pub. L. 93–400, §6(b), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1327; Pub. L. 100–679, §3(a)(2), Nov. 17, 1988, 102 Stat. 4055; Pub. L. 104–106, title XLIII, §4322(a)(1), Feb. 10, 1996, 110 Stat. 677.
1121(e) 41:405(f). Pub. L. 93–400, §6(f), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328; Pub. L. 100–679, §3(a)(4), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 104–201, title X, §1074(f)(1), Sept. 23, 1996, 110 Stat. 2661.
1121(f) 41:405(c). Pub. L. 93–400, §6(c), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1327.

In subsection (c)(2), the text of 41:405a (1st sentence relating to promulgating a single, simplified, uniform Federal procurement regulation) is omitted as superseded by 41:405(a) because of section 11 of the Office of Federal Procurement Policy Act Amendments of 1979 (Public Law 96–83, 93 Stat. 652).

Supersedure of Inconsistent Statutory Provisions

Pub. L. 96–83, §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 this division (except sections 1123, 2303, 2304, and 2313)] as amended by this Act [see Short Title of 1979 Act note set out under section 101 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' ([former] 41 U.S.C. 405a) [now 41 U.S.C. 1121(c)(2), 1123] to the extent they are inconsistent therewith."

Federal Support for Enhancement of State and Local Anti-Terrorism Response Capabilities

Pub. L. 108–136, div. A, title VIII, §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."

Profit Methodology Study

Pub. L. 100–679, §7, Nov. 17, 1988, 102 Stat. 4068, 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."

§1122. Functions

(a) In General.—The functions of the Administrator include—

(1) providing leadership and ensuring action by the executive agencies in establishing, developing, and maintaining the single system of simplified Government-wide procurement regulations and resolving differences among the executive agencies in developing simplified Government-wide procurement regulations, procedures, and forms;

(2) coordinating the development of Government-wide procurement system standards that executive agencies shall implement in their procurement systems;

(3) providing leadership and coordination in formulating 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 those 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 1712 of this title;

(5) providing for and directing the activities of the Federal Acquisition Institute established under section 1201 of this title, including recommending to the Administrator of General Services a sufficient budget for such activities.1

(6) administering section 1703(a) to (i) 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 Federal Government's cost of procuring property and services and the private sector's cost of doing business with the Federal 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 3(p) of the Small Business Act (15 U.S.C. 632(p))), 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, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns (as defined in section 3(p) of the Small Business Act (15 U.S.C. 632(p))), 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.


(b) Consultation and Assistance.—In carrying out the functions in subsection (a), the Administrator—

(1) shall consult with the affected executive agencies, including the Small Business Administration;

(2) with the concurrence of the heads of affected executive agencies, may designate one or more executive agencies to assist in performing those 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 performing any other function the Administrator considers appropriate.


(c) Assignment, Delegation, or Transfer.—

(1) To administrator.—Except as otherwise provided by law, only duties, functions, or responsibilities expressly assigned by this division shall be assigned, delegated, or transferred to the Administrator.

(2) By administrator.—

(A) Within office.—The Administrator may make and authorize delegations within the Office of Federal Procurement Policy that the Administrator determines to be necessary to carry out this division.

(B) To another executive agency.—The Administrator may delegate, and authorize successive redelegations of, an authority, function, or power of the Administrator under this division (other than the authority to provide overall direction of Federal procurement policy and to prescribe policies and regulations to carry out the policy) to another executive agency with the consent of the head of the executive agency or at the direction of the President.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3685; Pub. L. 112–81, div. A, title VIII, §864(b)(3), Dec. 31, 2011, 125 Stat. 1524.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1122(a) 41:405(d). Pub. L. 93–400, §6(d), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1327; Pub. L. 100–679, §3(a)(3), Nov. 17, 1988, 102 Stat. 4055; Pub. L. 103–355, title V, §5091, title VII, §7108, Oct. 13, 1994, 108 Stat. 3361, 3378; Pub. L. 104–106, title XLIII, §§4307(b), 4321(h)(1), (2), Feb. 10, 1996, 110 Stat. 668, 675; Pub. L. 105–85, title X, §1073(g)(2)(B), Nov. 18, 1997, 111 Stat. 1906; Pub. L. 105–135, title VI, §604(f)(1), Dec. 2, 1997, 111 Stat. 2634.
1122(b) 41:405(e). Pub. L. 93–400, §6(e), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328; Pub. L. 98–369, title VII, §2732(b)(1), July 18, 1984, 98 Stat. 1199.
1122(c)(1) 41:405(g). Pub. L. 93–400, §6(g), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328.
1122(c)(2)(A) 41:411(b). Pub. L. 93–400, §12, Aug. 30, 1974, 88 Stat. 799; Pub. L. 96–83, §8, Oct. 10, 1979, 93 Stat. 652; Pub. L. 98–191, §8(c), Dec. 1, 1983, 97 Stat. 1331.
1122(c)(2)(B) 41:411(a).

In clause (12), the words "small business concerns owned and controlled by service-disabled veterans" are added to conform to section 15(g)(1) of the Small Business Act (15:644(g)(1)).

Amendments

2011—Subsec. (a)(5). Pub. L. 112–81 amended par. (5) generally. Prior to amendment, par. (5) related to the purposes of the activities of the Federal Acquisition Institute.

Pilot Program To Inventory Cost and Size of Service Contracts

Pub. L. 110–161, div. D, title VII, §748, Dec. 26, 2007, 121 Stat. 2035, provided that: "No later than 180 days after enactment of this Act [Dec. 26, 2007], the Office of Management and Budget shall establish a pilot program to develop and implement an inventory to track the cost and size (in contractor manpower equivalents) of service contracts, particularly with respect to contracts that have been performed poorly by a contractor because of excessive costs or inferior quality, as determined by a contracting officer within the last five years, involve inherently governmental functions, or were undertaken without competition. The pilot program shall be established in at least three Cabinet-level departments, based on varying levels of annual contracting for services, as reported by the Federal Procurement Data System's Federal Procurement Report for fiscal year 2005, including at least one Cabinet-level department that contracts out annually for $10,000,000,000 or more in services, at least one Cabinet-level department that contracts out annually for between $5,000,000,000 and $9,000,000,000 in services, and at least one Cabinet-level department that contracts out annually for under $5,000,000,000 in services."

Reporting of Bundled Contract Opportunities

Pub. L. 105–135, title IV, §414, Dec. 2, 1997, 111 Stat. 2619, 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 ([former] 41 U.S.C. 405(d)(4)(A)) [now 41 U.S.C. 1122(a)(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)."

Results-Oriented Acquisition Process

Pub. L. 103–355, title V, §5052, Oct. 13, 1994, 108 Stat. 3352, 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."

Data Collection Through Federal Procurement Data System

Pub. L. 103–355, title X, §10004, Oct. 13, 1994, 108 Stat. 3405, 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 ([former] 41 U.S.C. 405(d)(4)(A)) [now 41 U.S.C. 1122(a)(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 ([former] 41 U.S.C. 403(11)) [now 41 U.S.C. 134]."

1 So in original. The period probably should be a semicolon.

§1123. Small business concerns

In formulating the Federal Acquisition Regulation and procedures to ensure compliance with the Regulation, the Administrator, in consultation with the Small Business Administration, shall—

(1) conduct analyses of the impact on small business concerns resulting from revised procurement regulations; and

(2) incorporate into revised procurement regulations simplified bidding, contract performance, and contract administration procedures for small business concerns.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3687.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1123 41:405a (last sentence). Pub. L. 95–507, title II, §222 (last sentence), Oct. 24, 1978, 92 Stat. 1771.

§1124. Tests of innovative procurement methods and procedures

(a) In General.—The Administrator may develop innovative procurement methods and procedures to be tested by selected executive agencies. In developing a 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 the program;

(2) develop the guidelines and procedures for carrying out the program and the criteria to be used in measuring the success of the program;

(3) evaluate the potential costs and benefits which may be derived from the innovative procurement methods and procedures tested under the program;

(4) select the appropriate executive agencies or components of executive agencies to carry out the program;

(5) specify the categories and types of products or services to be procured under the program; and

(6) develop the methods to be used to analyze the results of the program.


(b) Approval of Executive Agencies Required.—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 the program.

(c) Request for Waiver of Law.—If the Administrator determines that it is necessary to waive the application of a provision of law to carry out a proposed program to test innovative procurement methods and procedures under subsection (a), the Administrator shall transmit notice of the proposed program to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate and request that the Committees take the necessary action to provide that the provision of law does not apply with respect to the proposed program. The notification to Congress shall include—

(1) a description of the proposed program (including the scope and purpose of the proposed program);

(2) the procedures to be followed in carrying out the proposed program;

(3) the provisions of law affected and the application of any provision of law that must be waived in order to carry out the proposed program; and

(4) the executive agencies involved in carrying out the proposed program.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3688.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1124(a) 41:413(a) (1st, 2d sentences). Pub. L. 93–400, §15, as added Pub. L. 98–191, §7, Dec. 1, 1983, 97 Stat. 1329; Pub. L. 104–201, title X, §1074(f)(2), Sept. 23, 1996, 110 Stat. 2661.
1124(b) 41:413(a) (last sentence).
1124(c) 41:413(b).

In subsection (c), 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).

§1125. Recipients of Federal grants or assistance

(a) Authority.—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 that the Administrator considers appropriate and that executive agencies shall follow in providing for the procurement, to the extent required under those programs, of property or services referred to in section 1121(c)(1) of this title by recipients of Federal grants or assistance under the programs.

(b) Limitation.—Subsection (a) does not—

(1) permit the Administrator to authorize procurement or supply support, either directly or indirectly, to a recipient of a Federal grant or assistance; or

(2) authorize action by a recipient contrary to State and local law in the case of a program to provide a Federal grant or assistance to a State or political subdivision.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3688.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1125(a) 41:405(i)(1). Pub. L. 93–400, §6(i), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328.
1125(b) 41:405(i)(2).

§1126. Policy regarding consideration of contractor past performance

(a) Guidance.—The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include—

(1) 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;

(2) 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;

(3) policies for ensuring that—

(A) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and

(B) the information submitted by offerors is considered; and


(4) the period for which information on past performance of offerors may be maintained and considered.


(b) Information Not Available.—If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3689.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1126(a) 41:405(j)(1). Pub. L. 93–400, §6(j), as added Pub. L. 103–355, title I, §1091(b)(2), Oct. 13, 1994, 108 Stat. 3272.
1126(b) 41:405(j)(2).

Inclusion of Data on Contractor Performance in Past Performance Databases for Executive Agency Source Selection Decisions

Pub. L. 112–239, div. A, title VIII, §853, Jan. 2, 2013, 126 Stat. 1856, provided that:

"(a) Strategy Required.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Federal Acquisition Regulatory Council shall develop a strategy for ensuring that timely, accurate, and complete information on contractor performance is included in past performance databases used by executive agencies for making source selection decisions.

"(2) Consultation with usdatl.—In developing the strategy required by this subsection, the Federal Acquisition Regulatory Council shall consult with the Under Secretary of Defense for Acquisition, Technology, and Logistics to ensure that the strategy is, to the extent practicable, consistent with the strategy developed by the Under Secretary pursuant to section 806 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 125 Stat. 1487; 10 U.S.C. 2302 note).

"(b) Elements.—The strategy required by subsection (a) shall, at a minimum—

"(1) establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a);

"(2) assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and

"(3) ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted.

"(c) Contractor Comments.—Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Federal Acquisition Regulation shall be revised to require the following:

"(1) That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a).

"(2) That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.

"(3) That agency evaluations of contractor past performance, including any comments, rebuttals, or additional information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1).

"(d) Construction.—Nothing in this section shall be construed to prohibit a contractor from submitting comments, rebuttals, or additional information pertaining to past performance after the period described in subsection (c)(2) has elapsed or to prohibit a contractor from challenging a past performance evaluation in accordance with applicable laws, regulations, or procedures.

"(e) Comptroller General Report.—Not later than 18 months after the date of the enactment of this Act [Jan. 2, 2013], the Comptroller General of the United States shall submit to the appropriate committees of Congress a report on the actions taken by the Federal Acquisition Regulatory Council pursuant to this section, including an assessment of the following:

"(1) The extent to which the strategy required by subsection (a) is consistent with the strategy developed by the Under Secretary of Defense for Acquisition, Technology, and Logistics as described in subsection (a)(2).

"(2) The extent to which the actions of the Federal Acquisition Regulatory Council pursuant to this section have otherwise achieved the objectives of this section.

"(f) Definitions.—In this section:

"(1) The term 'appropriate committees of Congress' means—

"(A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and

"(B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Oversight and Government Reform, and the Committee on Appropriations of the House of Representatives.

"(2) The term 'executive agency' has the meaning given that term in section 133 of title 41, United States Code, except that the term excludes the Department of Defense and the military departments.

"(3) The term 'Federal Acquisition Regulatory Council' means the Federal Acquisition Regulatory Council under section 1302(a) of title 41, United States Code."

Congressional Findings Regarding Consideration of Past Contract Performance

Pub. L. 103–355, title I, §1091(b)(1), Oct. 13, 1994, 108 Stat. 3272, 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."

§1127. Determining benchmark compensation amount

(a) Definitions.—In this section:

(1) Benchmark compensation amount.—The term "benchmark compensation amount", for a fiscal year, is the median amount of the compensation provided for all senior executives of all benchmark corporations for the most recent year for which data is available at the time the determination under subsection (b) is made.

(2) Benchmark corporation.—The term "benchmark corporation", with respect to a fiscal year, means a publicly-owned United States corporation that has annual sales in excess of $50,000,000 for the fiscal year.

(3) Compensation.—The term "compensation", for a fiscal year, means the total amount of wages, salary, bonuses, and deferred compensation for the fiscal year, whether paid, earned, or otherwise accruing, as recorded in an employer's cost accounting records for the fiscal year.

(4) Fiscal year.—The term "fiscal year" means a fiscal year a contractor establishes for accounting purposes.

(5) Publicly-owned united states corporation.—The term "publicly-owned United States corporation" means a corporation—

(A) organized under the laws of a State of the United States, the District of Columbia, Puerto Rico, or a possession of the United States; and

(B) whose voting stock is publicly traded.


(6) Senior executives.—The term "senior executives", with respect to a contractor, means the 5 most highly compensated employees in management positions at each home office and each segment of the contractor.


(b) Determining Benchmark Compensation Amount.—For purposes of section 4304(a)(16) of this title and section 2324(e)(1)(P) of title 10, the Administrator shall review commercially available surveys of executive compensation and, on the basis of the results of the review, determine a benchmark compensation amount to apply for each fiscal year. In making determinations under this subsection, the Administrator shall consult with the Director of the Defense Contract Audit Agency and other officials of executive agencies as the Administrator considers appropriate.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3689.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1127(a)(1) 41:435(b). Pub. L. 93–400, §39, as added Pub. L. 105–85, title VIII, §808(c)(1), Nov. 18, 1997, 111 Stat. 1837; Pub. L. 105–261, title VIII, §804(c)(1), Oct. 17, 1998, 112 Stat. 2083.
1127(a)(2) 41:435(c)(3).
1127(a)(3) 41:435(c)(1).
1127(a)(4) 41:435(c)(5).
1127(a)(5) 41:435(c)(4).
1127(a)(6) 41:435(c)(2).
1127(b) 41:435(a).

Exclusive Applicability of Provisions Limiting Allowability of Compensation for Certain Contractor Personnel

Pub. L. 105–85, div. A, title VIII, §808(f), Nov. 18, 1997, 111 Stat. 1838, provided that: "Notwithstanding any other provision of law, no other limitation in law on the allowability of costs of compensation of senior executives under covered contracts shall apply to such costs of compensation incurred after January 1, 1998."

Definitions for Purposes of Section 808 of Pub. L. 105–85

Pub. L. 105–85, div. A, title VIII, §808(g), Nov. 18, 1997, 111 Stat. 1838, as amended by Pub. L. 105–261, div. A, title VIII, §804(c)(2), Oct. 17, 1998, 112 Stat. 2083, provided that: "In this section [see Tables for classification]:

"(1) The term 'covered contract' has the meaning given such term in section 2324(l) of title 10, United States Code, and section 306(l) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 256(l)) [see 41 U.S.C. 4301].

"(2) The terms 'compensation' and 'senior executives' have the meanings given such terms in section 2324(l) of title 10, United States Code, and section 306(m) of the Federal Property and Administrative Services Act of 1949 [see 41 U.S.C. 4301]."

§1128. Maintaining necessary capability with respect to acquisition of architectural and engineering services

The Administrator, in consultation with the Secretary of Defense, the Administrator of General Services, and the Director of the Office of Personnel Management, shall develop and implement a plan to ensure that the Federal Government maintains the necessary capability with respect to the acquisition of architectural and engineering services to—

(1) ensure that Federal Government employees have the expertise to determine agency requirements for those services;

(2) establish priorities and programs, including acquisition plans;

(3) establish professional standards;

(4) develop scopes of work; and

(5) award and administer contracts for those services.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1128 41:433 note. Pub. L. 108–136, title XIV, §1414, Nov. 24, 2003, 117 Stat. 1666.

§1129. Center of excellence in contracting for services

The Administrator shall maintain a center of excellence in contracting for services. The center 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.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1129 41:405 note. Pub. L. 108–136, title XIV, §1431(b), Nov. 24, 2003, 117 Stat. 1671.

The words "Not later than 180 days after the date of the enactment of this Act" are omitted, and the word "maintain" is substituted for "establish", to eliminate obsolete words.

§1130. Effect of division on other law

This division does not impair or affect the authorities or responsibilities relating to the procurement of real property conferred by division C of this subtitle and chapters 1 to 11 of title 40.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1130 41:405(h)(1). Pub. L. 93–400, §6(h)(1), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328; Pub. L. 104–106, title LVI, §5607(d), Feb. 10, 1996, 110 Stat. 702.

§1131. Annual report

The Administrator annually shall submit to Congress an assessment of the progress made in executive agencies in implementing the policy regarding major acquisitions that is stated in section 3103(a) of this title. The Administrator shall use data from existing management systems in making the assessment.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1131 41:405(k). Pub. L. 93–400, §6(k), as added Pub. L. 103–355, title V, §5051(b), Oct. 13, 1994, 108 Stat. 3351; Pub. L. 105–85, title VIII, §851(b), Nov. 18, 1997, 111 Stat. 1851.

CHAPTER 12—FEDERAL ACQUISITION INSTITUTE

Sec.
1201.
Federal Acquisition Institute.

        

§1201. Federal Acquisition Institute

(a) In General.—There is established a Federal Acquisition Institute (FAI) in order to—

(1) foster and promote the development of a professional acquisition workforce Government-wide;

(2) 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;

(3) 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;

(4) periodically analyze acquisition career fields to identify critical competencies, duties, tasks, and related academic prerequisites, skills, and knowledge;

(5) coordinate and assist agencies in identifying and recruiting highly qualified candidates for acquisition fields;

(6) develop instructional materials for acquisition personnel in coordination with private and public acquisition colleges and training facilities;

(7) evaluate the effectiveness of training and career development programs for acquisition personnel;

(8) promote the establishment and utilization of academic programs by colleges and universities in acquisition fields;

(9) facilitate, to the extent requested by agencies, interagency intern and training programs;

(10) collaborate with other civilian agency acquisition training programs to leverage training supporting all members of the civilian agency acquisition workforce;

(11) assist civilian agencies with their acquisition and capital planning efforts; and

(12) perform other career management or research functions as directed by the Administrator.


(b) Budget Resources and Authority.—

(1) In general.—The Administrator shall recommend to the Administrator of General Services sufficient budget resources and authority for the Federal Acquisition Institute to support Government-wide training standards and certification requirements necessary to enhance the mobility and career opportunities of the Federal acquisition workforce.

(2) Acquisition workforce training fund.—Subject to the availability of funds, the Administrator of General Services shall provide the Federal Acquisition Institute with amounts from the acquisition workforce training fund established under section 1703(i) of this title sufficient to meet the annual budget for the Federal Acquisition Institute requested by the Administrator under paragraph (1).


(c) Federal Acquisition Institute Board of Directors.—

(1) Reporting to administrator.—The Federal Acquisition Institute shall report through its Board of Directors directly to the Administrator.

(2) Composition.—The Board shall be composed of not more than 8 individuals from the Federal Government representing a mix of acquisition functional areas, all of whom shall be appointed by the Administrator.

(3) Duties.—The Board shall provide general direction to the Federal Acquisition Institute to ensure that the Institute—

(A) meets its statutory requirements;

(B) meets the needs of the Federal acquisition workforce;

(C) implements appropriate programs;

(D) coordinates with appropriate organizations and groups that have an impact on the Federal acquisition workforce;

(E) develops and implements plans to meet future challenges of the Federal acquisition workforce; and

(F) works closely with the Defense Acquisition University.


(4) Recommendations.—The Board shall make recommendations to the Administrator regarding the development and execution of the annual budget of the Federal Acquisition Institute.


(d) Director.—The Director of the Federal Acquisition Institute shall be appointed by, be subject to the direction and control of, and report directly to the Administrator.

(e) Annual Report.—The Administrator shall submit to the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate and the Committee on Oversight and Government Reform and the Committee on Appropriations of the House of Representatives an annual report on the projected budget needs and expense plans of the Federal Acquisition Institute to fulfill its mandate.

(Added Pub. L. 112–81, div. A, title VIII, §864(b)(1), Dec. 31, 2011, 125 Stat. 1523.)

Construction

Pub. L. 112–81, div. A, title VIII, §864(e), Dec. 31, 2011, 125 Stat. 1525, provided that: "Nothing in this section [enacting this chapter and amending sections 1122, 1703, and 1704 of this title], or the amendments made by this section, shall be construed to preclude the Secretary of Defense from establishing acquisition workforce policies, procedures, training standards, and certification requirements for acquisition positions in the Department of Defense, as provided in chapter 87 of title 10, United States Code."

CHAPTER 13—ACQUISITION COUNCILS

SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY COUNCIL

Sec.
1301.
Definition.
1302.
Establishment and membership.
1303.
Functions and authority.
1304.
Contract clauses and certifications.

        

SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL

1311.
Establishment and membership.
1312.
Functions.

        

SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY COUNCIL

§1301. Definition

In this subchapter, the term "Council" means the Federal Acquisition Regulatory Council established under section 1302(a) of this title.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3691.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1301 41:403(17). Pub. L. 93–400, §4(17), as added Pub. L. 108–375, title VIII, §807(b), Oct. 28, 2004, 118 Stat. 2011.

§1302. Establishment and membership

(a) Establishment.—There is a Federal Acquisition Regulatory Council to assist in the direction and coordination of Government-wide procurement policy and Government-wide procurement regulatory activities in the Federal Government.

(b) Membership.—

(1) Makeup of council.—The Council consists of—

(A) the Administrator;

(B) the Secretary of Defense;

(C) the Administrator of National Aeronautics and Space; and

(D) the Administrator of General Services.


(2) Designation of other officials.—

(A) Officials who may be designated.—Notwithstanding section 121(d)(1) and (2) of title 40, the officials specified in subparagraphs (B) to (D) of paragraph (1) may designate to serve on and attend meetings of the Council in place of that official—

(i) the official assigned by statute with the responsibility for acquisition policy in each of their respective agencies or, in the case of the Secretary of Defense, an official at an organizational level not lower than an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics; or

(ii) if no official of that agency is assigned by statute with the responsibility for acquisition policy for that agency, the official designated pursuant to section 1702(c) of this title.


(B) Limitation on designation.—No other official or employee may be designated to serve on the Council.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3691.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1302(a) 41:421(a). Pub. L. 93–400, §25(a), (b), as added Pub. L. 100–679, §4, Nov. 17, 1988, 102 Stat. 4056; Pub. L. 101–510, title VIII, §807, Nov. 5, 1990, 104 Stat. 1593; Pub. L. 104–106, title XLIII, §4322(a)(2), Feb. 10, 1996, 110 Stat. 677.
1302(b) 41:421(b).

In subsection (a), the words "(hereinafter in this section referred to as the 'Council')" are omitted as unnecessary.

In subsection (b)(2)(A)(i), the words "Under Secretary of Defense for Acquisition, Technology, and Logistics" are substituted for "Under Secretary of Defense for Acquisition and Technology" because of section 911(a)(1) of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65, 113 Stat. 717, 10 U.S.C. 133 note).

In subsection (b)(2)(A)(ii), the cross-reference to section 16(3) of the Office of Federal Procurement Policy Act (41:414(3)) is treated as a cross-reference to section 16(c) of the Act to reflect the amendment of section 16 by section 1421(a)(1) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136, 117 Stat. 1666).

Status of Director of Defense Procurement

Pub. L. 102–190, div. A, title VIII, §809, Dec. 5, 1991, 105 Stat. 1423, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that: "For the purposes of the amendment made by section 807 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1593) to section 25(b)(2) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 421(b)(2)) [now 41 U.S.C. 1302(b)(2)], the Director of Defense Procurement of the Department of Defense shall be considered to be an official at an organizational level of an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics."

§1303. Functions and authority

(a) Functions.—

(1) Issue and maintain federal acquisition regulation.—Subject to sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title, the Administrator of General Services, the Secretary of Defense, and the Administrator of National Aeronautics and Space, pursuant to their respective authorities under division C of this subtitle, chapters 4 and 137 of title 10, and the National Aeronautics and Space Act of 1958 (42 U.S.C. 2451 et seq.),1 shall jointly issue and maintain in accordance with subsection (d) a single Government-wide procurement regulation, to be known as the Federal Acquisition Regulation.

(2) Limitation on other regulations.—Other regulations relating to procurement issued by an executive agency shall be limited to—

(A) regulations essential to implement Government-wide policies and procedures within the agency; and

(B) additional policies and procedures required to satisfy the specific and unique needs of the agency.


(3) Ensure consistent regulations.—The Administrator, in consultation with the Council, shall ensure that procurement regulations prescribed by executive agencies are consistent with the Federal Acquisition Regulation and in accordance with the policies prescribed pursuant to section 1121(b) of this title.

(4) Request to review regulation.—

(A) Basis for request.—Under procedures the Administrator establishes, a person may request the Administrator to review a regulation relating to procurement on the basis that the regulation is inconsistent with the Federal Acquisition Regulation.

(B) Period of review.—Unless the request is frivolous or does not, on its face, state a valid basis for the review, the Administrator shall complete the review not later than 60 days after receiving the request. The time for completion of the review may be extended if the Administrator determines that an additional period of review is required. The Administrator shall advise the requester of the reasons for the extension and the date by which the review will be completed.


(5) When regulation is inconsistent or needs to be improved.—If the Administrator determines that a regulation relating to procurement is inconsistent with the Federal Acquisition Regulation or that the regulation otherwise should be revised to remove an inconsistency with the policies prescribed under section 1121(b) of this title, the Administrator shall rescind or deny the promulgation of the regulation or take other action authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title as may be necessary to remove the inconsistency. If the Administrator determines that the regulation, although not inconsistent with the Federal Acquisition Regulation or those policies, should be revised to improve compliance with the Regulation or policies, the Administrator shall take action authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 as may be necessary and appropriate.

(6) Decisions to be in writing and publicly available.—The decisions of the Administrator shall be in writing and made publicly available.


(b) Additional Responsibilities of Membership.—

(1) In general.—Subject to the authority, direction, and control of the head of the agency concerned, each official who represents an agency on the Council pursuant to section 1302(b) of this title shall—

(A) approve or disapprove all regulations relating to procurement that are proposed for public comment, prescribed in final form, or otherwise made effective by that agency before the regulation may be prescribed in final form, or otherwise made effective, except that the official may grant an interim approval, without review, for not more than 60 days for a procurement regulation in urgent and compelling circumstances;

(B) carry out the responsibilities of that agency set forth in chapter 35 of title 44 for each information collection request that relates to procurement rules or regulations; and

(C) eliminate or reduce—

(i) any redundant or unnecessary levels of review and approval in the procurement system of that agency; and

(ii) redundant or unnecessary procurement regulations which are unique to that agency.


(2) Limitation on delegation.—The authority to review and approve or disapprove regulations under paragraph (1)(A) may not be delegated to an individual outside the office of the official who represents the agency on the Council pursuant to section 1302(b) of this title.


(c) Governing Policies.—All actions of the Council and of members of the Council shall be in accordance with and furtherance of the policies prescribed under section 1121(b) of this title.

(d) General Authority With Respect to Federal Acquisition Regulation.—Subject to section 1121(d) of this title, the Council shall manage, coordinate, control, and monitor the maintenance of, issuance of, and changes in, the Federal Acquisition Regulation.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3691.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1303(a) 41:421(c). Pub. L. 93–400, §25(c)–(f), as added Pub. L. 100–679, §4, Nov. 17, 1988, 102 Stat. 4056; Pub. L. 104–201, title VIII, §822, title X, §1074(f)(3), Sept. 23, 1996, 110 Stat. 2609, 2661; Pub. L. 105–85, title VIII, §841(d), Nov. 18, 1997, 111 Stat. 1843.
1303(b) 41:421(d).
1303(c) 41:421(e).
1303(d) 41:421(f).

In subsection (a)(6), the text of 41:421(c)(6) (last sentence) is omitted because 41:407 was repealed by section 4305(b) of the National Defense Authorization Act of Fiscal Year 1996 (Public Law 104–106, 110 Stat. 665).

In subsection (b)(1)(A), the words "after 60 days after November 17, 1988" are omitted as obsolete.

In subsection (b)(1)(B), the words "(as that term is defined in section 3502(11) of title 44)" are omitted because chapter 35 of title 44 was amended generally by the Paperwork Reduction Act of 1995 (Public Law 104–13, 109 Stat. 163) and 44:3502 no longer defines "information collection request". The term "information collection request" is retained in this section of the revised title, however, because 44:ch. 35 still contains provisions about requests for collection of information.

References in Text

The National Aeronautics and Space Act of 1958, referred to in subsec. (a)(1), is Pub. L. 85–568, July 29, 1958, 72 Stat. 426, which was classified principally to chapter 26 (§2451 et seq.) of Title 42, The Public Health and Welfare, and was substantially repealed and restated as chapter 201 (§20101 et seq.) of Title 51, National and Commercial Space Programs, by Pub. L. 111–314, §§3, 6, Dec. 18, 2010, 124 Stat. 3328, 3444. For complete classification of this Act to the Code, see Short Title of 1958 Act note set out under section 10101 of Title 51 and Tables.

1 See References in Text note below.

§1304. Contract clauses and certifications

(a) Repetitive Nonstandard Contract Clauses Discouraged.—The Council shall prescribe regulations to discourage the use of a nonstandard contract clause on a repetitive basis. The regulations shall include provisions that—

(1) clearly define what types of contract clauses are to be treated as nonstandard clauses; and

(2) require prior approval for the use of a nonstandard clause on a repetitive basis by an official at a level of responsibility above the contracting officer.


(b) When Certification Required.—

(1) By law.—A provision of law may not be construed as requiring a certification by a contractor or offeror in a procurement made or to be made by the Federal Government unless that provision of law specifically provides that such a certification shall be required.

(2) In federal acquisition regulation.—A requirement for a certification by a contractor or offeror may not be included in the Federal Acquisition Regulation unless—

(A) the certification requirement is specifically imposed by statute; or

(B) written justification for the certification requirement is provided to the Administrator by the Council and the Administrator approves in writing the inclusion of the certification requirement.


(3) Executive agency procurement regulation.—

(A) Definition.—In subparagraph (B), the term "head of the executive agency" with respect to a military department means the Secretary of Defense.

(B) When certification requirement may be included in regulation.—A requirement for a certification by a contractor or offeror may not be included in a procurement regulation of an executive agency unless—

(i) the certification requirement is specifically imposed by statute; or

(ii) written justification for the certification requirement is provided to the head of the executive agency by the senior procurement executive of the agency and the head of the executive agency approves in writing the inclusion of the certification requirement.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3693.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1304(a) 41:425(a). Pub. L. 93–400, §29, as added Pub. L. 103–355, title I, §1093, Oct. 13, 1994, 108 Stat. 3273; Pub. L. 104–106, title XLIII, §4301(b)(2)(A), (c), Feb. 10, 1996, 110 Stat. 657, 658.
1304(b)(1) 41:425(b).
1304(b)(2), (3) 41:425(c).

Current Certification Requirements

Pub. L. 104–106, div. D, title XLIII, §4301(b)(1), Feb. 10, 1996, 110 Stat. 656, provided that:

"(A) Not later than 210 days after the date of the enactment of this Act [Feb. 10, 1996], the Administrator for Federal Procurement Policy shall issue for public comment a proposal to amend the Federal Acquisition Regulation to remove from the Federal Acquisition Regulation certification requirements for contractors and offerors that are not specifically imposed by statute. The Administrator may omit such a certification requirement from the proposal only if—

"(i) the Federal Acquisition Regulatory Council provides the Administrator with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and

"(ii) the Administrator approves in writing the retention of the certification requirement.

"(B)(i) Not later than 210 days after the date of the enactment of this Act, the head of each executive agency that has agency procurement regulations containing one or more certification requirements for contractors and offerors that are not specifically imposed by statute shall issue for public comment a proposal to amend the regulations to remove the certification requirements. The head of the executive agency may omit such a certification requirement from the proposal only if—

"(I) the senior procurement executive for the executive agency provides the head of the executive agency with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and

"(II) the head of the executive agency approves in writing the retention of such certification requirement.

"(ii) For purposes of clause (i), the term 'head of the executive agency' with respect to a military department means the Secretary of Defense."

Addressing Tax Delinquency by Government Contractors

Memorandum of President of the United States, Jan. 20, 2010, 75 F.R. 3979, provided:

Memorandum for the Heads of Executive Departments and Agencies

The Federal Government pays more than half a trillion dollars a year to contractors and has an important obligation to protect American taxpayer money and the integrity of the Federal acquisition process. Yet reports by the Government Accountability Office (GAO) state that Federal contracts are awarded to tens of thousands of companies with serious tax delinquencies. The total amount in unpaid taxes owed by these contracting companies is estimated to be more than $5 billion.

Too often, Federal contracting officials do not have the most basic information they need to make informed judgments about whether a company trying to win a Federal contract is delinquent in paying its taxes. We need to give our contracting officials the tools they need to protect taxpayer dollars.

Accordingly, I hereby direct the Commissioner of Internal Revenue (Commissioner) to direct a review of certifications of non-delinquency in taxes that companies bidding for Federal contracts are required to submit pursuant to a 2008 amendment to the Federal Acquisition Regulation. I further direct that the Commissioner report to me within 90 days on the overall accuracy of contractors' certifications.

I also direct the Director of the Office of Management and Budget, working with the Secretary of the Treasury and other agency heads, to evaluate practices of contracting officers and debarring officials in response to contractors' certifications of serious tax delinquencies and to provide me, within 90 days, recommendations on process improvements to ensure these contractors are not awarded new contracts, including a plan to make contractor certifications available in a Government-wide database, as is already being done with other information on contractors.

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL

§1311. Establishment and membership

(a) Establishment.—There is in the executive branch a Chief Acquisition Officers Council.

(b) Membership.—The members of the Council are—

(1) the Deputy Director for Management of the Office of Management and Budget;

(2) the Administrator;

(3) the Under Secretary of Defense for Acquisition, Technology, and Logistics;

(4) the chief acquisition officer of each executive agency that is required to have a chief acquisition officer under section 1702 of this title and the senior procurement executive of each military department; and

(5) any other senior agency officer of each executive agency, appointed by the head of the agency in consultation with the Chairman of the Council, who can effectively assist the Council in performing the functions set forth in section 1312(b) of this title and supporting the associated range of acquisition activities.


(c) Leadership and Support.—

(1) Chairman.—The Deputy Director for Management of the Office of Management and Budget is the Chairman of the Council.

(2) Vice chairman.—The Vice Chairman of the Council shall be selected by the Council from among its members. The Vice Chairman serves for one year and may serve multiple terms.

(3) Leader of activities.—The Administrator shall lead the activities of the Council on behalf of the Deputy Director for Management.

(4) Support.—The Administrator of General Services shall provide administrative and other support for the Council.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3694.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1311(a) 41:414b(a). Pub. L. 93–400, §16A(a)–(c), as added Pub. L. 108–136, title XIV, §1422(a), Nov. 24, 2003, 117 Stat. 1668.
1311(b) 41:414b(b)(1) (words before comma), (2)–(5).
1311(c)(1) 41:414b(b)(1) (words after comma).
1311(c)(2) 41:414b(c)(2).
1311(c)(3) 41:414b(c)(1).
1311(c)(4) 41:414b(c)(3).

§1312. Functions

(a) Principal Forum.—The Chief Acquisition Officers Council is the principal interagency forum for monitoring and improving the Federal acquisition system.

(b) Functions.—The Council shall perform functions that include the following:

(1) Develop recommendations for the Director of the Office of Management and Budget on Federal acquisition policies and requirements.

(2) Share experiences, ideas, best practices, and innovative approaches related to Federal acquisition.

(3) Assist the Administrator in the identification, development, and coordination of multiagency projects and other innovative initiatives to improve Federal acquisition.

(4) Promote effective business practices that ensure the timely delivery of best value products to the Federal Government and achieve appropriate public policy objectives.

(5) Further integrity, fairness, competition, openness, and efficiency in the Federal acquisition system.

(6) Work with the Office of Personnel Management to assess and address the hiring, training, and professional development needs of the Federal Government related to acquisition.

(7) Work with the Administrator and the Federal Acquisition Regulatory Council to promote the business practices referred to in paragraph (4) and other results of the functions carried out under this subsection.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3694.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1312(a) 41:414b(d). Pub. L. 93–400, §16A(d), (e), as added Pub. L. 108–136, title XIV, §1422(a), Nov. 24, 2003, 117 Stat. 1668.
1312(b) 41:414b(e).

CHAPTER 15—COST ACCOUNTING STANDARDS

Sec.
1501.
Cost Accounting Standards Board.
1502.
Cost accounting standards.
1503.
Contract price adjustment.
1504.
Effect on other standards and regulations.
1505.
Examinations.
1506.
Authorization of appropriations.

        

§1501. Cost Accounting Standards Board

(a) Organization.—The Cost Accounting Standards Board is an independent board in the Office of Federal Procurement Policy.

(b) Membership.—

(1) Number of members, chairman, and appointment.—The Board consists of 5 members. One member is the Administrator, who serves as Chairman. The other 4 members, all of whom shall have experience in Federal Government contract cost accounting, are as follows:

(A) 2 representatives of the Federal Government—

(i) one of whom is a representative of the Department of Defense appointed by the Secretary of Defense; and

(ii) one of whom is an officer or employee of the General Services Administration appointed by the Administrator of General Services.


(B) 2 individuals from the private sector, each of whom is appointed by the Administrator, and—

(i) one of whom is a representative of industry; and

(ii) one of whom is particularly knowledgeable about cost accounting problems and systems.


(2) Term of office.—

(A) Length of term.—The term of office of each member, other than the Administrator, is 4 years. The terms are staggered, with the terms of 2 members expiring in the same year, the term of another member expiring the next year, and the term of the last member expiring the year after that.

(B) Individual required to remain with appointing agency.—A member appointed under paragraph (1)(A) may not continue to serve after ceasing to be an officer or employee of the agency from which that member was appointed.


(3) Vacancy.—A vacancy on the Board shall be filled in the same manner in which the original appointment was made. A member appointed to fill a vacancy serves for the remainder of the term for which that member's predecessor was appointed.


(c) Senior Staff.—The Administrator, after consultation with the Board, may—

(1) appoint an executive secretary and 2 additional staff members without regard to the provisions of title 5 governing appointments in the competitive service; and

(2) pay those employees without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and General Schedule pay rates, except that those employees may not receive pay in excess of the maximum rate of basic pay payable for level IV of the Executive Schedule.


(d) Other Staff.—The Administrator may appoint, fix the compensation of, and remove additional employees of the Board under the applicable provisions of title 5.

(e) Detailed and Temporary Personnel.—For service on advisory committees and task forces to assist the Board in carrying out its functions and responsibilities—

(1) the Board, with the consent of the head of a Federal agency, may use, without reimbursement, personnel of that agency; and

(2) the Administrator, after consultation with the Board, may procure temporary and intermittent services of personnel under section 3109(b) of title 5.


(f) Compensation.—

(1) Officers and employees of the government.—Members of the Board who are officers or employees of the Federal Government, and officers and employees of other agencies of the Federal Government who are used under subsection (e)(1), shall not receive additional compensation for services but shall continue to be compensated by the employing department or agency of the officer or employee.

(2) Appointees from private sector.—Each member of the Board appointed from the private sector shall receive compensation at a rate not to exceed the daily equivalent of the rate for level IV of the Executive Schedule for each day (including travel time) in which the member is engaged in the actual performance of duties vested in the Board.

(3) Temporary and intermittent personnel.—An individual hired under subsection (e)(2) may receive compensation at a rate fixed by the Administrator, but not to exceed the daily equivalent of the rate for level V of the Executive Schedule for each day (including travel time) in which the individual is properly engaged in the actual performance of duties under this chapter.

(4) Travel expenses.—While serving away from home or regular place of business, Board members and other individuals serving on an intermittent basis under this chapter shall be allowed travel expenses in accordance with section 5703 of title 5.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3695.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1501(a) 41:422(a)(1) (1st sentence). Pub. L. 93–400, §26(a)–(e), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4058.
1501(b) 41:422(a)(1) (last sentence), (2).
1501(c) 41:422(b).
1501(d) 41:422(c).
1501(e) 41:422(d).
1501(f) 41:422(e).

In subsection (b)(2), the text of 41:422(a)(2)(C) is omitted as obsolete.

In subsection (b)(2)(A), the last sentence is substituted for "of the initial members, two shall be appointed for terms of two years, one shall be appointed for a term of three years, and one shall be appointed for a term of four years" because the initial members have already been appointed.

In subsection (c)(2), the reference to section 5376 of title 5 is substituted for the reference to grade GS–18 of the General Schedule because of section 529 [title I, §101(c)(1)] of the Treasury, Postal Service, and General Government Appropriations Act, 1991 (Public Law 101–509, 104 Stat. 1442, 5:5376 note).

In subsection (f)(1), the words "Except as otherwise provided in subsection (a) of this section" are omitted because 41:422(a) does not provide any relevant exception.

In subsection (f)(2), the words "private sector" are substituted for "private life" for consistency with subsection (b)(1)(B) of the revised section.

In subsection (f)(3), the words "Executive Schedule" are substituted for "Federal Executive Salary Schedule under section 5316 of title 5" for consistency and to eliminate unnecessary words.

Senate Revision Amendment

In subsec. (c)(2), "for level IV of the Executive Schedule" substituted for "under section 5376 of title 5" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. S8441, Dec. 2, 2010 (daily ed.).

§1502. Cost accounting standards

(a) Authority.—

(1) Cost accounting standards board.—The Cost Accounting Standards Board has exclusive authority to prescribe, amend, and rescind cost accounting standards, and interpretations of the standards, designed to achieve uniformity and consistency in the cost accounting standards governing measurement, assignment, and allocation of costs to contracts with the Federal Government.

(2) Administrator for federal procurement policy.—The Administrator, after consultation with the Board, shall prescribe rules and procedures governing actions of the Board under this chapter. The rules and procedures shall require that any action to prescribe, amend, or rescind a standard or interpretation be approved by majority vote of the Board.


(b) Mandatory Use of Standards.—

(1) Subcontract.—

(A) Definition.—In this paragraph, the term "subcontract" includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or subcontractor.

(B) When standards are to be used.—Cost accounting standards prescribed under this chapter are mandatory for use by all executive agencies and by contractors and subcontractors in estimating, accumulating, and reporting costs in connection with the pricing and administration of, and settlement of disputes concerning, all negotiated prime contract and subcontract procurements with the Federal Government in excess of the amount set forth in section 2306a(a)(1)(A)(i) of title 10 as the amount is adjusted in accordance with applicable requirements of law.

(C) Nonapplication of standards.—Subparagraph (B) does not apply to—

(i) a contract or subcontract for the acquisition of a commercial item;

(ii) a contract or subcontract where the price negotiated is based on a price set by law or regulation;

(iii) a firm, fixed-price contract or subcontract awarded on the basis of adequate price competition without submission of certified cost or pricing data; or

(iv) a contract or subcontract with a value of less than $7,500,000 if, when the contract or subcontract is entered into, the segment of the contractor or subcontractor that will perform the work has not been awarded at least one contract or subcontract with a value of more than $7,500,000 that is covered by the standards.


(2) Exemptions and waivers by board.—The Board may—

(A) exempt classes of contractors and subcontractors from the requirements of this chapter; and

(B) establish procedures for the waiver of the requirements of this chapter for individual contracts and subcontracts.


(3) Waiver by head of executive agency.—

(A) In general.—The head of an executive agency may waive the applicability of the cost accounting standards for a contract or subcontract with a value of less than $15,000,000 if that official determines in writing that the segment of the contractor or subcontractor that will perform the work—

(i) is primarily engaged in the sale of commercial items; and

(ii) would not otherwise be subject to the cost accounting standards under this section.


(B) In exceptional circumstances.—The head of an executive agency may waive the applicability of the cost accounting standards for a contract or subcontract under exceptional circumstances when necessary to meet the needs of the agency. A determination to waive the applicability of the standards under this subparagraph shall be set forth in writing and shall include a statement of the circumstances justifying the waiver.

(C) Restriction on delegation of authority.—The head of an executive agency may not delegate the authority under subparagraph (A) or (B) to an official in the executive agency below the senior policymaking level in the executive agency.

(D) Contents of federal acquisition regulation.—The Federal Acquisition Regulation shall include—

(i) criteria for selecting an official to be delegated authority to grant waivers under subparagraph (A) or (B); and

(ii) the specific circumstances under which the waiver may be granted.


(E) Report.—The head of each executive agency shall report the waivers granted under subparagraphs (A) and (B) for that agency to the Board on an annual basis.


(c) Required Board Action for Prescribing Standards and Interpretations.—Before prescribing cost accounting standards and interpretations, the Board shall—

(1) take into account, after consultation and discussions with the Comptroller General, professional accounting organizations, contractors, and other interested parties—

(A) the probable costs of implementation, including any inflationary effects, compared to the probable benefits;

(B) the advantages, disadvantages, and improvements anticipated in the pricing and administration of, and settlement of disputes concerning, contracts; and

(C) the scope of, and alternatives available to, the action proposed to be taken;


(2) prepare and publish a report in the Federal Register on the issues reviewed under paragraph (1);

(3)(A) publish an advanced notice of proposed rulemaking in the Federal Register to solicit comments on the report prepared under paragraph (2);

(B) provide all parties affected at least 60 days after publication to submit their views and comments; and

(C) during the 60-day period, consult with the Comptroller General and consider any recommendation the Comptroller General may make; and

(4) publish a notice of proposed rulemaking in the Federal Register and provide all parties affected at least 60 days after publication to submit their views and comments.


(d) Effective Dates.—Rules, regulations, cost accounting standards, and modifications thereof prescribed or amended under this chapter shall have the full force and effect of law, and shall become effective within 120 days after publication in the Federal Register in final form, unless the Board determines that a longer period is necessary. The Board shall determine implementation dates for contractors and subcontractors. The dates may not be later than the beginning of the second fiscal year of the contractor or subcontractor after the standard becomes effective.

(e) Accompanying Material.—Rules, regulations, cost accounting standards, and modifications thereof prescribed or amended under this chapter shall be accompanied by prefatory comments and by illustrations, if necessary.

(f) Implementing Regulations.—The Board shall prescribe regulations for the implementation of cost accounting standards prescribed or interpreted under this section. The regulations shall be incorporated into the Federal Acquisition Regulation and shall require contractors and subcontractors as a condition of contracting with the Federal Government to—

(1) disclose in writing their cost accounting practices, including methods of distinguishing direct costs from indirect costs and the basis used for allocating indirect costs; and

(2) agree to a contract price adjustment, with interest, for any increased costs paid to the contractor or subcontractor by the Federal Government because of a change in the contractor's or subcontractor's cost accounting practices or a failure by the contractor or subcontractor to comply with applicable cost accounting standards.


(g) Nonapplicability of Certain Sections of Title 5.—Functions exercised under this chapter are not subject to sections 551, 553 to 559, and 701 to 706 of title 5.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3696.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1502(a) 41:422(f)(1), (3). Pub. L. 93–400, §26(f), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4060; Pub. L. 103–355, title II, §2453, title VIII, §8301(d), Oct. 13, 1994, 108 Stat. 3326, 3397; Pub. L. 104–106, title XLII, §4205, title XLIII, §4321(h)(4), Feb. 10, 1996, 110 Stat. 656, 675; Pub. L 106–65, title VIII, §802(a), (b), Oct. 5, 1999, 113 Stat. 701; Pub. L 109–163, div. A, title VIII, §822, Jan. 6, 2006, 119 Stat. 3386.
1502(b)(1) 41:422(f)(2), (4).
1502(b)(2) 41:422(f)(4).
1502(b)(3) 41:422(f)(5).
1502(c) 41:422(g)(1). Pub. L. 93–400, §26(g), (h)(1), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4061.
1502(d) 41:422(g)(2) (1st, 2d sentences).
1502(e) 41:422(g)(2) (last sentence).
1502(f) 41:422(h)(1).
1502(g) 41:422(g)(3).

In subsection (a)(1), the word "make" is omitted as being included in "prescribe".

In subsection (b)(2)(A), the word "categories" is omitted as being included in "classes".

In subsection (b)(3)(A)(ii), the words "as in effect on or after the effective date of this paragraph" are omitted as obsolete.

Effective Date of Amendment by Pub. L. 106–65; Regulations; Implementation; Construction

Pub. L. 106–65, div. A, title VIII, §802(c)–(e), (g)–(i), Oct. 5, 1999, 113 Stat. 701, 702, provided that:

"(c) Regulation on Types of CAS Coverage.—(1) The Administrator for Federal Procurement Policy shall revise the rules and procedures prescribed pursuant to section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)] to the extent necessary to increase the thresholds established in section 9903.201–2 of title 48 of the Code of Federal Regulations from $25,000,000 to $50,000,000.

"(2) Paragraph (1) requires only a change of the statement of a threshold condition in the regulation referred to by section number in that paragraph, and shall not be construed as—

"(A) a ratification or expression of approval of—

"(i) any aspect of the regulation; or

"(ii) the manner in which section 26 of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1501 et seq.] is administered through the regulation; or

"(B) a requirement to apply the regulation.

"(d) Implementation.—The Administrator for Federal Procurement Policy shall ensure that this section [see Tables for classification] and the amendments made by this section are implemented in a manner that ensures that the Federal Government can recover costs, as appropriate, in a case in which noncompliance with cost accounting standards, or a change in the cost accounting system of a contractor segment or subcontractor segment that is not determined to be desirable by the Federal Government, results in a shift of costs from contracts that are not covered by the cost accounting standards to contracts that are covered by the cost accounting standards.

"(e) Implementation of Requirements for Revision of Regulations.—(1) Final regulations required by subsection (c) shall be issued not later than 180 days after the date of the enactment of this Act [Oct. 5, 1999].

"(2) Subsection (c) shall cease to be effective one year after the date on which final regulations issued in accordance with that subsection take effect.

"(g) Inapplicability of Standards to Certain Contracts.—The cost accounting standards issued pursuant to section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)], as amended by this section, shall not apply during fiscal year 2000 with respect to a contract entered into under the authority provided in chapter 89 of title 5, United States Code (relating to health benefits for Federal employees).

"(h) Construction Regarding Certain Not-For-Profit Entities.—The amendments made by subsections (a) and (b) [see Tables for classification] shall not be construed as modifying or superseding, nor as intended to impair or restrict, the applicability of the cost accounting standards described in section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)] to—

"(1) any educational institution or federally funded research and development center that is associated with an educational institution in accordance with Office of Management and Budget Circular A–21, as in effect on January 1, 1999; or

"(2) any contract with a nonprofit entity that provides research and development and related products or services to the Department of Defense.

"(i) Effective Date.—The amendments made by subsections (a) and (b) [see Tables for classification] shall take effect 180 days after the date of enactment of this Act [Oct. 5, 1999], and shall apply with respect to—

"(1) contracts that are entered into on or after such effective date; and

"(2) determinations made on or after such effective date regarding whether a segment of a contractor or subcontractor is subject to the cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)], regardless of whether the contracts on which such determinations are made were entered into before, on, or after such date."

§1503. Contract price adjustment

(a) Disagreement Constitutes a Dispute.—If the Federal Government and a contractor or subcontractor fail to agree on a contract price adjustment, including whether the contractor or subcontractor has complied with the applicable cost accounting standards, the disagreement will constitute a dispute under chapter 71 of this title.

(b) Amount of Adjustment.—A contract price adjustment undertaken under section 1502(f)(2) of this title shall be made, where applicable, on relevant contracts between the Federal Government and the contractor that are subject to the cost accounting standards so as to protect the Federal Government from payment, in the aggregate, of increased costs, as defined by the Cost Accounting Standards Board. The Federal Government may not recover costs greater than the aggregate increased cost to the Federal Government, as defined by the Board, on the relevant contracts subject to the price adjustment unless the contractor made a change in its cost accounting practices of which it was aware or should have been aware at the time of the price negotiation and which it failed to disclose to the Federal Government.

(c) Interest.—The interest rate applicable to a contract price adjustment is the annual rate of interest established under section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621) for the period. Interest accrues from the time payments of the increased costs were made to the contractor or subcontractor to the time the Federal Government receives full compensation for the price adjustment.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3699.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1503(a) 41:422(h)(2). Pub. L. 93–400, §26(h)(2)–(4), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4062.
1503(b) 41:422(h)(3).
1503(c) 41:422(h)(4).

§1504. Effect on other standards and regulations

(a) Previously Existing Standards.—All cost accounting standards, waivers, exemptions, interpretations, modifications, rules, and regulations prescribed by the Cost Accounting Standards Board under section 719 of the Defense Production Act of 1950 (50 U.S.C. App. 2168)—

(1) remain in effect until amended, superseded, or rescinded by the Board under this chapter; and

(2) are subject to the provisions of this division in the same manner as if prescribed by the Board under this division.


(b) Inconsistent Agency Regulations.—To ensure that a regulation or proposed regulation of an executive agency is not inconsistent with a cost accounting standard prescribed or amended under this chapter, the Administrator, under the authority in sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title, shall rescind or deny the promulgation of the inconsistent regulation or proposed regulation and take other appropriate action authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305.

(c) Costs Not Subject to Different Standards.—Costs that are the subject of cost accounting standards prescribed under this chapter are not subject to regulations established by another executive agency that differ from those standards with respect to the measurement, assignment, and allocation of those costs.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3699.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1504(a) 41:422(j)(1), (2). Pub. L. 93–400, §26(j), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4062.
1504(b) 41:422(j)(3).
1504(c) 41:422(j)(4).

§1505. Examinations

To determine whether a contractor or subcontractor has complied with cost accounting standards prescribed under this chapter and has followed consistently the contractor's or subcontractor's disclosed cost accounting practices, an authorized representative of the head of the agency concerned, of the offices of inspector general established under the Inspector General Act of 1978 (5 U.S.C. App.), or of the Comptroller General shall have the right to examine and copy documents, papers, or records of the contractor or subcontractor relating to compliance with the standards.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3700.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1505 41:422(k). Pub. L. 93–400, §26(k), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4062.

References in Text

The Inspector General Act of 1978, referred to in text, 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.

§1506. Authorization of appropriations

Necessary amounts may be appropriated to carry out this chapter.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3700.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1506 41:422(l). Pub. L. 93–400, §26(l), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4063.

CHAPTER 17—AGENCY RESPONSIBILITIES AND PROCEDURES

Sec.
1701.
Cooperation with the Administrator.
1702.
Chief Acquisition Officers and senior procurement executives.
1703.
Acquisition workforce.
1704.
Planning and policy-making for acquisition workforce.
1705.
Advocates for competition.
1706.
Personnel evaluation.
1707.
Publication of proposed regulations.
1708.
Procurement notice.
1709.
Contracting functions performed by Federal personnel.
1710.
Public-private competition required before conversion to contractor performance.
1711.
Value engineering.
1712.
Record requirements.
1713.
Procurement data.

        

§1701. Cooperation with the Administrator

On the request of the Administrator, each executive agency shall—

(1) make its services, personnel, and facilities available to the Office of Federal Procurement Policy to the greatest practicable extent for the performance of functions under this division; and

(2) except when prohibited by law, furnish to the Administrator, and give the Administrator access to, all information and records in its possession that the Administrator may determine to be necessary for the performance of the functions of the Office.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3700.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1701 41:406. Pub. L. 93–400, §7, Aug. 30, 1974, 88 Stat. 798.

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:

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.      

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 Act note set out under section 101 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.      

§1702. Chief Acquisition Officers and senior procurement executives

(a) Appointment or Designation of Chief Acquisition Officer.—The head of each executive agency described in section 901(b)(1) (other than the Department of Defense) or 901(b)(2)(C) of title 31 with a Chief Financial Officer appointed or designated under section 901(a) of title 31 shall appoint or designate a non-career employee as Chief Acquisition Officer for the agency.

(b) Authority and Functions of Chief Acquisition Officer.—

(1) Primary duty.—The primary duty of a Chief Acquisition Officer is acquisition management.

(2) Advice and assistance.—A Chief Acquisition Officer shall 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.

(3) Other functions.—The functions of each Chief Acquisition Officer include—

(A) 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;

(B) 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 the Federal Government's requirements (including performance and delivery schedules) at the lowest cost or best value considering the nature of the property or service procured;

(C) increasing appropriate use of performance-based contracting and performance specifications;

(D) making acquisition decisions consistent with all applicable laws and establishing clear lines of authority, accountability, and responsibility for acquisition decisionmaking within the executive agency;

(E) managing the direction of acquisition policy for the executive agency, including implementation of the unique acquisition policies, regulations, and standards of the executive agency;

(F) advising the executive agency on the applicability of relevant policy on the contracts of the agency for overseas contingency operations and ensuring the compliance of the contracts and contracting activities of the agency with such policy;

(G) developing and maintaining an acquisition career management program in the executive agency to ensure that there is an adequate professional workforce; and

(H) as part of the strategic planning and performance evaluation process required under section 306 of title 5 and sections 1105(a)(28), 1115, 1116, and 9703 (added by section 5(a) of Public Law 103–62 (107 Stat. 289)) of title 31—

(i) assessing the requirements established for agency personnel regarding knowledge and skill in acquisition resources management and the adequacy of those requirements for facilitating the achievement of the performance goals established for acquisition management;

(ii) developing strategies and specific plans for hiring, training, and professional development to rectify a deficiency in meeting those requirements; and

(iii) reporting to the head of the executive agency on the progress made in improving acquisition management capability.


(c) Senior Procurement Executive.—

(1) Designation.—The head of each executive agency shall designate a senior procurement executive.

(2) Responsibility.—The senior procurement executive is responsible for management direction of the procurement system of the executive agency, including implementation of the unique procurement policies, regulations, and standards of the executive agency.

(3) When chief acquisition officer appointed or designated.—For an executive agency for which a Chief Acquisition Officer has been appointed or designated under subsection (a), the head of the executive agency shall—

(A) designate the Chief Acquisition Officer as the senior procurement executive for the executive agency; or

(B) ensure that the senior procurement executive designated under paragraph (1) reports directly to the Chief Acquisition Officer without intervening authority.


(d) Overseas Contingency Operations Defined.—In this section, the term "overseas contingency operations" means military operations outside the United States and its territories and possessions that are a contingency operation (as that term is defined in section 101(a)(13) of title 10).

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3701; Pub. L. 112–239, div. A, title VIII, §849, Jan. 2, 2013, 126 Stat. 1853.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1702(a), (b)(1), (2) 41:414(a). Pub. L. 93–400, §16, as added Pub. L. 98–191, §7, Dec. 1, 1983, 97 Stat. 1330; Pub. L. 98–369, title VII, §2732(b)(2), July 18, 1984, 98 Stat. 1199; Pub. L. 108–136, div. A, title XIV, §1421(a)(1), Nov. 24, 2003, 117 Stat. 1666.
1702(b)(3) 41:414(b).
1702(c) 41:414(c).

Amendments

2013—Subsec. (b)(3)(F) to (H). Pub. L. 112–239, §849(a), added subpar. (F) and redesignated former subpars. (F) and (G) as (G) and (H), respectively.

Subsec. (d). Pub. L. 112–239, §849(b), added subsec. (d).

§1703. Acquisition workforce

(a) Description.—For purposes of this section, the acquisition workforce of an agency consists of all employees serving in acquisition positions listed in subsection (g)(1)(A).

(b) Applicability.—

(1) Nonapplicability to certain executive agencies.—Except as provided in subsection (i), this section does not apply to an executive agency that is subject to chapter 87 of title 10.

(2) Applicability of programs.—The programs established by this section apply to the acquisition workforce of each executive agency.


(c) Management Policies.—

(1) Duties of head of executive agency.—

(A) Establish policies and procedures.—After consultation with the Administrator, the head of each executive agency shall establish policies and procedures for the effective management (including accession, education, training, career development, and performance incentives) of the acquisition workforce of the agency. The development of acquisition workforce policies under this section shall be carried out consistent with the merit system principles set forth in section 2301(b) of title 5.

(B) Ensure uniform implementation.—The head of each executive agency shall ensure that, to the maximum extent practicable, acquisition workforce policies and procedures established are uniform in their implementation throughout the agency.


(2) Duties of administrator.—

(A) In general.—The Administrator shall issue policies to promote uniform implementation of this section by executive agencies, with due regard for differences in program requirements among agencies that may be appropriate and warranted in view of the agency mission. The Administrator shall coordinate with the Deputy Director for Management of the Office of Management and Budget to ensure that the policies are consistent with the policies and procedures established, and enhanced system of incentives provided, pursuant to section 5051(c) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 108 Stat. 3351). The Administrator shall evaluate the implementation of this section by executive agencies.

(B) Government-wide training standards and certification.—The Administrator, acting through the Federal Acquisition Institute, shall provide and update government-wide training standards and certification requirements, including—

(i) developing and modifying acquisition certification programs;

(ii) ensuring quality assurance for agency implementation of government-wide training and certification standards;

(iii) analyzing the acquisition training curriculum to ascertain if all certification competencies are covered or if adjustments are necessary;

(iv) developing career path information for certified professionals to encourage retention in government positions;

(v) coordinating with the Office of Personnel Management for human capital efforts; and

(vi) managing rotation assignments to support opportunities to apply skills included in certification.


(d) Authority and Responsibility of Senior Procurement Executive.—Subject to the authority, direction, and control of the head of an executive agency, the senior procurement executive of the agency shall carry out all powers, functions, and duties of the head of the agency with respect to implementing this section. The senior procurement executive shall ensure that the policies of the head of the executive agency established in accordance with this section are implemented throughout the agency.

(e) Collecting and Maintaining Information.—The Administrator shall ensure that the heads of executive agencies collect and maintain standardized information on the acquisition workforce related to implementing this section. To the maximum extent practicable, information requirements shall conform to standards the Director of the Office of Personnel Management establishes for the Central Personnel Data File.

(f) Career Development.—

(1) Career paths.—

(A) Identification.—The head of each executive agency shall ensure that appropriate career paths for personnel who desire to pursue careers in acquisition are identified in terms of the education, training, experience, and assignments necessary for career progression to the most senior acquisition positions. The head of each executive agency shall make available information on those career paths.

(B) Critical duties and tasks.—For each career path, the head of each executive agency shall identify the critical acquisition-related duties and tasks in which, at minimum, employees of the agency in the career path shall be competent to perform at full performance grade levels. For this purpose, the head of the executive agency shall provide appropriate coverage of the critical duties and tasks identified by the Director of the Federal Acquisition Institute.

(C) Mandatory training and education.—For each career path, the head of each executive agency shall establish requirements for the completion of course work and related on-the-job training in the critical acquisition-related duties and tasks of the career path. The head of each executive agency also shall encourage employees to maintain the currency of their acquisition knowledge and generally enhance their knowledge of related acquisition management disciplines through academic programs and other self-developmental activities.


(2) Performance incentives.—The head of each executive agency shall provide for an enhanced system of incentives to encourage excellence in the acquisition workforce that rewards performance of employees who contribute to achieving the agency's performance goals. The system of incentives shall include provisions that—

(A) relate pay to performance (including the extent to which the performance of personnel in the workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant to section 3103(b) of this title); and

(B) provide for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in the workforce contributes to achieving the cost goals, schedule goals, and performance goals.


(g) Qualification Requirements.—

(1) In general.—Subject to paragraph (2), the Administrator shall—

(A) establish qualification requirements, including education requirements, for—

(i) entry-level positions in the General Schedule Contracting series (GS–1102);

(ii) senior positions in the General Schedule Contracting series (GS–1102);

(iii) all positions in the General Schedule Purchasing series (GS–1105); and

(iv) positions in other General Schedule series in which significant acquisition-related functions are performed; and


(B) prescribe the manner and extent to which the qualification requirements shall apply to an individual serving in a position described in subparagraph (A) at the time the requirements are established.


(2) Relationship to requirements applicable to defense acquisition workforce.—The Administrator shall establish qualification requirements and make prescriptions under paragraph (1) that are comparable to those established for the same or equivalent positions pursuant to chapter 87 of title 10 with appropriate modifications.

(3) Approval of requirements.—The Administrator shall submit any requirement established or prescription made under paragraph (1) to the Director of the Office of Personnel Management for approval. The Director is deemed to have approved the requirement or prescription if the Director does not disapprove the requirement or prescription within 30 days after receiving it.


(h) Education and Training.—

(1) Funding levels.—The head of an executive agency shall set forth separately the funding levels requested for educating and training the acquisition workforce in the budget justification documents submitted in support of the President's budget submitted to Congress under section 1105 of title 31.

(2) Tuition assistance.—The head of an executive agency may provide tuition reimbursement in education (including a full-time course of study leading to a degree) in accordance with section 4107 of title 5 for personnel serving in acquisition positions in the agency.

(3) Restricted obligation.—Amounts appropriated for education and training under this section may not be obligated for another purpose.


(i) Training Fund.—

(1) Purposes.—The purposes of this subsection are to ensure that the Federal acquisition workforce—

(A) adapts to fundamental changes in the nature of Federal Government acquisition of property and services associated with the changing roles of the Federal Government; and

(B) acquires new skills and a new perspective to enable it to contribute effectively in the changing environment of the 21st century.


(2) Establishment and management of fund.—There is an acquisition workforce training fund. The Administrator of General Services shall manage the fund through the Federal Acquisition Institute to support the activities set forth in section 1201(a) of this title, except as provided in paragraph (5). The Administrator of General Services shall consult with the Administrator in managing the fund.

(3) Credits to fund.—Five percent of the fees collected by executive agencies (other than the Department of Defense) under the following contracts shall be credited to the fund:

(A) Government-wide task and delivery-order contracts entered into under sections 4103 and 4105 of this title.

(B) Government-wide contracts for the acquisition of information technology as defined in section 11101 of title 40 and multiagency acquisition contracts for that technology authorized by section 11314 of title 40.

(C) multiple-award schedule contracts entered into by the Administrator of General Services.


(4) Remittance by head of executive agency.—The head of an executive agency that administers a contract described in paragraph (3) shall remit to the General Services Administration the amount required to be credited to the fund with respect to the contract at the end of each quarter of the fiscal year.

(5) Transfer and use of fees collected from department of defense.—The Administrator of General Services shall transfer to the Secretary of Defense fees collected from the Department of Defense pursuant to paragraph (3). The Defense Acquisition University shall use the fees for acquisition workforce training.

(6) Amounts not to be used for other purposes.—The Administrator of General Services, through the Office of Federal Procurememt 1 Policy, shall ensure that amounts collected under this section are not used for a purpose other than the activities set forth in section 1201(a) of this title.

(7) Amounts are in addition to other amounts for education and training.—Amounts credited to the fund are in addition to amounts requested and appropriated for education and training referred to in subsection (h)(1).

(8) Availability of amounts.—Amounts credited to the fund remain available to be expended only in the fiscal year for which they are credited and the 2 succeeding fiscal years.


(j) Recruitment Program.—

(1) Shortage category positions.—For purposes of sections 3304, 5333, and 5753 of title 5, the head of a department or agency of the Federal Government (other than the Secretary of Defense) may determine, under regulations prescribed by the Office of Personnel Management, that certain Federal acquisition positions (as described in subsection (g)(1)(A)) are shortage category positions in order to use the authorities in those sections to recruit and appoint highly qualified individuals directly to those positions in the department or agency.

(2) Termination of authority.—The head of a department or agency may not appoint an individual to a position of employment under this subsection after September 30, 2017.


(k) Reemployment Without Loss of Annuity.—

(1) Establishment of policies and procedures.—The head of each executive agency, after consultation with the Administrator and the Director of the Office of Personnel Management, shall establish policies and procedures under which the agency head may reemploy in an acquisition-related position (as described in subsection (g)(1)(A)) an individual receiving an annuity from the Civil Service Retirement and Disability Fund, on the basis of the individual's service, without discontinuing the annuity. The head of each executive agency shall keep the Administrator informed of the agency's use of this authority.

(2) Criteria for continuation of annuity.—Policies and procedures established under paragraph (1) shall authorize the head of the executive agency, on a case-by-case basis, to continue an annuity if any of the following makes the reemployment of an individual essential:

(A) The unusually high or unique qualifications of an individual receiving an annuity from the Civil Service Retirement and Disability Fund on the basis of the individual's service.

(B) The exceptional difficulty in recruiting or retaining a qualified employee.

(C) A temporary emergency hiring need.


(3) Service not subject to csrs or fers.—An individual reemployed under this subsection shall not be deemed an employee for purposes of chapter 83 or 84 of title 5.

(4) Reporting requirement.—The Administrator shall submit annually to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the use of the authority under this subsection, including the number of employees reemployed under authority of this subsection.

(5) Sunset provision.—The authority under this subsection expires on December 31, 2011.


(l) Acquisition Internship and Training Programs.—All Federal civilian agency acquisition internship or acquisition training programs shall follow guidelines provided by the Office of Federal Procurement Policy to ensure consistent training standards necessary to develop uniform core competencies throughout the Federal Government.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3702; Pub. L. 112–74, div. C, title V, §526, Dec. 23, 2011, 125 Stat. 914; Pub. L. 112–81, div. A, title VIII, §864(c), (d), Dec. 31, 2011, 125 Stat. 1525; Pub. L. 112–239, div. A, title X, §1076(a)(15), title XI, §1103, Jan. 2, 2013, 126 Stat. 1948, 1973.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1703(a) 41:433(e) (last sentence). Pub. L. 93–400, §37(b)–(h)(2), as added Pub. L. 104–106, title XLIII, §4307(a)(1), Feb. 10, 1996, 110 Stat. 666.
1703(b)(1) 41:433(a). Pub. L. 93–400, §37(a), as added Pub. L. 104–106, title XLIII, §4307(a)(1), Feb. 10, 1996, 110 Stat. 666; Pub. L. 109–163, div. A, title VIII, §821(b)(1), Jan. 6, 2006, 119 Stat. 3386.
1703(b)(2) 41:433(e) (1st sentence).
1703(c) 41:433(b).
1703(d) 41:433(c).
1703(e) 41:433(d).
1703(f) 41:433(f).
1703(g) 41:433(g).
1703(h)(1) 41:433(h)(1)(A).
1703(h)(2) 41:433(h)(2).
1703(h)(3) 41:433(h)(1)(B).
1703(i)(1) 41:433 note. Pub. L. 108–136, div. A, title XIV, §1412(a), Nov. 24, 2003, 117 Stat. 1664.
1703(i)(2)–(8) 41:433(h)(3). Pub. L. 93–400, §37(h)(3), as added Pub. L. 108–136, div. A, title XIV, §1412(b), Nov. 24, 2003, 117 Stat. 1664; Pub. L. 109–163, div. A, title VIII, §821(a), Jan. 6, 2006, 119 Stat. 3386; Pub. L. 110–181, div. A, title VIII, §854, Jan. 28, 2008, 122 Stat. 251.
1703(j) 41:433 note. Pub. L. 108–136, div. A, title XIV, §1413, Nov. 24, 2003, 117 Stat. 1665; Pub. L. 110–181, div. A, title VIII, §853, title X, §1063(g)(2), Jan. 28, 2008, 122 Stat. 250, 323.
1703(k) 41:433(i). Pub. L. 93–400, §37(i), as added Pub. L. 109–313, §4, Oct. 6, 2006, 120 Stat. 1737.

In subsection (e), the word "information" the second time it appears is substituted for "data" for consistency in the subsection.

In subsection (i)(6), the words "Office of Federal Procurement Policy" are substituted for "Office of Federal Acquisition Policy" to provide the correct name of the office.

In subsection (j), the text of 1413(c) of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108–136, 117 Stat. 1665) is omitted as obsolete.

In subsection (k)(4), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Reform" on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007).

References in Text

Section 5051(c) of the Federal Acquisition Streamlining Act of 1994, referred to in subsec. (c)(2)(A), is section 5051(c) of Pub. L. 103–305, which is set out as a note under this section.

Amendments

2013—Subsec. (i)(6). Pub. L. 112–239, §1076(a)(15), amended Pub. L. 112–81, §864(d)(2). See 2011 Amendment note below.

Subsec. (j)(2). Pub. L. 112–239, §1103, substituted "September 30, 2017" for "September 30, 2012".

2011—Subsec. (c)(2). Pub. L. 112–81, §864(c)(1), designated existing provisions as subpar. (A), inserted subpar. heading, and added subpar. (B).

Subsec. (i)(2). Pub. L. 112–81, §864(d)(1), substituted "to support the activities set forth in section 1201(a) of this title" for "to support the training of the acquisition workforce of the executive agencies".

Subsec. (i)(6). Pub. L. 112–81, §864(d)(2), as amended by Pub. L. 112–239, §1076(a)(15), substituted "ensure that amounts collected under this section are not used for a purpose other than the activities set forth in section 1201(a) of this title." for "ensure that amounts collected under this subsection are not used for a purpose other than the purpose specified in subparagraphs (A) and (C) to (J) of section 1122(a)(5) of this title."

Pub. L. 112–74 struck out "for training" after "amounts collected" and substituted "subparagraphs (A) and (C) to (J) of section 1122(a)(5) of this title" for "paragraph (2)".

Subsec. (l). Pub. L. 112–81, §864(c)(2), added subsec. (l).

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(15) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.

Training for Contracting and Enforcement Personnel

Pub. L. 111–240, title I, §1343(a), Sept. 27, 2010, 124 Stat. 2545, provided that: "Not later than 1 year after the date of enactment of this Act [Sept. 27, 2010], the Federal Acquisition Institute, in consultation with the Administrator for Federal Procurement Policy, the Defense Acquisition University, and the Administrator [of the Small Business Administration], shall develop courses for acquisition personnel concerning proper classification of business concerns and small business size and status for purposes of Federal contracts, subcontracts, grants, cooperative agreements, and cooperative research and development agreements."

Defense Acquisition University Funding

Pub. L. 109–163, div. A, title VIII, §821(c), Jan. 6, 2006, 119 Stat. 3386, provided that: "Amounts transferred under section 37(h)(3)(D) of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1703(i)(5)] (as amended by subsection (a)) for use by the Defense Acquisition University shall be in addition to other amounts authorized for the University."

Enhanced System of Performance Incentives

Pub. L. 103–355, title V, §5051(c), Oct. 13, 1994, 108 Stat. 3351, provided that: "Within one year after the date of the enactment of this Act [Oct. 13, 1994], the Deputy Director for Management of the Office of Management and Budget, in consultation with appropriate officials in other departments and agencies of the Federal Government, shall, to the maximum extent consistent with applicable law—

"(1) establish policies and procedures for the heads of such departments and agencies to designate acquisition positions and manage employees (including the accession, education, training and career development of employees) in the designated acquisition positions; and

"(2) review the incentives and personnel actions available to the heads of departments and agencies of the Federal Government for encouraging excellence in the acquisition workforce of the Federal Government and provide an enhanced system of incentives for the encouragement of excellence in such workforce which—

"(A) relates pay to performance (including the extent to which the performance of personnel in such workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant to section 313(b) of the Federal Property and Administrative Services Act of 1949, as added by subsection (a) [now 41 U.S.C. 3103(b)]); and

"(B) provides for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in such workforce contributes to achieving such cost goals, schedule goals, and performance goals."

1 So in original. Probably should be "Procurement".

§1704. Planning and policy-making for acquisition workforce

(a) Definitions.—In this section:

(1) Associate Administrator.—The term "Associate Administrator" means the Associate Administrator for Acquisition Workforce Programs as designated by the Administrator pursuant to subsection (b).

(2) Chief Acquisition Officer.—The term "Chief Acquisition Officer" means a Chief Acquisition Officer for an executive agency appointed pursuant to section 1702 of this title.


(b) Associate Administrator for Acquisition Workforce Programs.—The Administrator shall designate a member of the Senior Executive Service as the Associate Administrator for Acquisition Workforce Programs. The Associate Administrator shall be chosen on the basis of demonstrated knowledge and expertise in acquisition, human capital, and management. The Associate Administrator shall be located in the Office of Federal Procurement Policy. The Associate Administrator shall be responsible for—

(1) supervising the acquisition workforce training fund established under section 1703(i) of this title;

(2) developing, in coordination with Chief Acquisition Officers and Chief Human Capital Officers, a strategic human capital plan for the acquisition workforce of the Federal Government;

(3) reviewing and providing input to individual agency acquisition workforce succession plans;

(4) recommending to the Administrator and other senior government officials appropriate programs, policies, and practices to increase the quantity and quality of the Federal acquisition workforce;

(5) implementing workforce programs under subsections (f) through (l) of section 1703 of this title; and

(6) carrying out other functions that the Administrator may assign.


(c) Acquisition and Contracting Training Programs Within Executive Agencies.—

(1) Chief Acquisition Officer authorities and responsibilities.—Subject to the authority, direction, and control of the head of an executive agency, the Chief Acquisition Officer for that agency shall carry out all powers, functions, and duties of the head of the agency with respect to implementation of this subsection. The Chief Acquisition Officer shall ensure that the policies established by the head of the agency in accordance with this subsection are implemented throughout the agency.

(2) Requirement.—The head of each executive agency, after consultation with the Associate Administrator, shall establish and operate acquisition and contracting training programs. The programs shall—

(A) have curricula covering a broad range of acquisition and contracting disciplines corresponding to the specific acquisition and contracting needs of the agency involved;

(B) be developed and applied according to rigorous standards; and

(C) be designed to maximize efficiency, through the use of self-paced courses, online courses, on-the-job training, and the use of remote instructors, wherever those features can be applied without reducing the effectiveness of the training or negatively affecting academic standards.


(d) Government-wide Policies and Evaluation.—The Administrator shall issue policies to promote the development of performance standards for training and uniform implementation of this section by executive agencies, with due regard for differences in program requirements among agencies that may be appropriate and warranted in view of the agency mission. The Administrator shall evaluate the implementation of the provisions of subsection (c) by executive agencies.

(e) Information on Acquisition and Contracting Training.—The Administrator shall ensure that the heads of executive agencies collect and maintain standardized information on the acquisition and contracting workforce related to the implementation of subsection (c).

(f) Acquisition Workforce Human Capital Succession Plan.—

(1) In general.—Each Chief Acquisition Officer for an executive agency shall develop, in consultation with the Chief Human Capital Officer for the agency and the Associate Administrator, a succession plan consistent with the agency's strategic human capital plan for the recruitment, development, and retention of the agency's acquisition workforce, with a particular focus on warranted contracting officers and program managers of the agency.

(2) Content of plan.—The acquisition workforce succession plan shall address—

(A) recruitment goals for personnel from procurement intern programs;

(B) the agency's acquisition workforce training needs;

(C) actions to retain high performing acquisition professionals who possess critical relevant skills;

(D) recruitment goals for personnel from the Federal Career Intern Program; and

(E) recruitment goals for personnel from the Presidential Management Fellows Program.


(g) Acquisition Workforce Development Strategic Plan.—

(1) Purpose.—The purpose of this subsection is to authorize the preparation and completion of the Acquisition Workforce Development Strategic Plan, which is a plan for Federal agencies other than the Department of Defense to—

(A) develop a specific and actionable 5-year plan to increase the size of the acquisition workforce; and

(B) operate a government-wide acquisition intern program for the Federal agencies.


(2) Establishment of plan.—The Associate Administrator shall be responsible for the management, oversight, and administration of the Acquisition Workforce Development Strategic Plan in cooperation and consultation with the Office of Federal Procurement Policy and with the assistance of the Federal Acquisition Institute.

(3) Criteria.—The Acquisition Workforce Development Strategic Plan shall include an examination of the following matters:

(A) The variety and complexity of acquisitions conducted by each Federal agency covered by the plan, and the workforce needed to effectively carry out the acquisitions.

(B) The development of a sustainable funding model to support efforts to hire, retain, and train an acquisition workforce of appropriate size and skill to effectively carry out the acquisition programs of the Federal agencies covered by the plan, including an examination of interagency funding methods and a discussion of how the model of the Defense Acquisition Workforce Development Fund could be applied to civilian agencies.

(C) Any strategic human capital planning necessary to hire, retain, and train an acquisition workforce of appropriate size and skill at each Federal agency covered by the plan.

(D) Methodologies that Federal agencies covered by the plan can use to project future acquisition workforce personnel hiring requirements, including an appropriate distribution of such personnel across each category of positions designated as acquisition workforce personnel under section 1703(g) of this title.

(E) Government-wide training standards and certification requirements necessary to enhance the mobility and career opportunities of the Federal acquisition workforce within the Federal agencies covered by the plan.

(F) If the Associate Administrator recommends as part of the plan a growth in the acquisition workforce of the Federal agencies covered by the plan below 25 percent over the next 5 years, an examination of each of the matters specified in subparagraphs (A) to (E) in the context of a 5-year plan that increases the size of such acquisition workforce by not less than 25 percent, or an explanation why such a level of growth would not be in the best interest of the Federal Government.


(4) Deadline for completion.—The Acquisition Workforce Development Strategic Plan shall be completed not later than one year after October 14, 2008, and in a fashion that allows for immediate implementation of its recommendations and guidelines.

(5) Funds.—The acquisition workforce development strategic plan shall be funded from the acquisition workforce training fund under section 1703(i) of this title.


(h) Training in the Acquisition of Architect and Engineering Services.—The Administrator shall ensure that a sufficient number of Federal employees are trained in the acquisition of architect and engineering services.

(i) Utilization of Recruitment and Retention Authorities.—The Administrator, in coordination with the Director of the Office of Personnel Management, shall encourage executive agencies to use existing authorities, including direct hire authority and tuition assistance programs, to recruit and retain acquisition personnel and consider recruiting acquisition personnel who may be retiring from the private sector, consistent with existing laws and regulations.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3706; Pub. L. 111–383, div. A, title X, §1075(e)(15), Jan. 7, 2011, 124 Stat. 4375; Pub. L. 112–81, div. A, title VIII, §864(a), Dec. 31, 2011, 125 Stat. 1522; Pub. L. 112–239, div. A, title X, §1076(a)(14), Jan. 2, 2013, 126 Stat. 1948.)

Amendments Not Shown in Text

Subsec. (g) of this section was derived from Pub. L. 110–417, [div. A], title VIII, §869, Oct. 14, 2008, 122 Stat. 4553, which was set out as a note under section 433a of former Title 41, Public Contracts, prior to being repealed and reenacted as subsec. (g) of this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. Section 869 of Pub. L. 110–417 was amended by Pub. L. 111–383, div. A, title X, §1075(e)(15), Jan. 7, 2011, 124 Stat. 4375. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 869 of Pub. L. 110–417 was amended as follows:

(1) in subsection (b), by striking "433(a)" and inserting "433a(a)"; and

(2) in subsection (c)(4)—

(A) by striking "37(j)" and inserting "37(g)"; and

(B) by striking "433(j)" and inserting "433(g)".

Such references did not appear in the text of subsec. (g) as enacted. See Historical and Revision Notes below.

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1704(a)(1) no source.
1704(a)(2) 41:433a(h). Pub. L. 110–181, div. A, title VIII, §855, Jan. 28, 2008, 122 Stat. 251.
1704(b)–(f) 41:433a(a)–(e).
1704(g) 41:433a note. Pub. L. 110–417, [div. A], title VIII, §869, Oct. 14, 2008, 122 Stat. 4553.
1704(h), (i) 41:433a(f), (g).

In subsection (a), the definition of "executive agency" is omitted as unnecessary.

In subsection (f)(1), the words "Not later than 1 year after the date of the enactment of this Act" are omitted as obsolete.

In subsection (g)(2), the words "Associate Administrator" are substituted for "Associate Administrator for Acquisition Workforce Programs designated under section 855(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 251; 41 U.S.C. 433(a))" because of subsection (a)(1).

In subsection (g)(3)(D), the reference to "section 37(j) of the Office of Federal Procurement Policy Act" is changed to "section 1703(g) of this title" to correct an error in the law.

Amendments

2013—Subsec. (b). Pub. L. 112–239, §1076(a)(14), made technical amendment to directory language of Pub. L. 112–81, §864(a)(2). See 2011 Amendment note below.

2011—Subsec. (b). Pub. L. 112–81, §864(a)(2), as amended by Pub. L. 112–239, §1076(a)(14), substituted "The Associate Administrator shall be located in the Office of Federal Procurement Policy." for "The Associate Administrator shall be located in the Federal Acquisition Institute (or its successor)." in introductory provisions.

Pub. L. 112–81, §864(a)(1), inserted "The Associate Administrator shall be chosen on the basis of demonstrated knowledge and expertise in acquisition, human capital, and management." after "Programs." in introductory provisions.

Subsec. (b)(5), (6). Pub. L. 112–81, §864(a)(3)–(5), added par. (5) and redesignated former par. (5) as (6).

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(14) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.

§1705. Advocates for competition

(a) Establishment and Designation.—

(1) Establishment.—Each executive agency has an advocate for competition.

(2) Designation.—The head of each executive agency shall—

(A) designate for the executive agency and for each procuring activity of the executive agency one officer or employee serving in a position authorized for the executive agency on July 18, 1984 (other than the senior procurement executive designated pursuant to section 1702(c) of this title) to serve as the advocate for competition;

(B) not assign those officers or employees duties or responsibilities that are inconsistent with the duties and responsibilities of the advocates for competition; and

(C) provide those officers or employees with the staff or assistance necessary to carry out the duties and responsibilities of the advocate for competition, such as individuals who are specialists in engineering, technical operations, contract administration, financial management, supply management, and utilization of small and disadvantaged business concerns.


(b) Duties and Functions.—The advocate for competition of an executive agency shall—

(1) be responsible for challenging barriers to, and promoting full and open competition in, the procurement of property and services by the executive agency;

(2) review the procurement activities of the executive agency;

(3) identify and report to the senior procurement executive of the executive agency—

(A) opportunities and actions taken to achieve full and open competition in the procurement activities of the executive agency; and

(B) any condition or action which has the effect of unnecessarily restricting competition in the procurement actions of the executive agency;


(4) prepare and transmit to the senior procurement executive an annual report describing—

(A) the advocate's activities under this section;

(B) new initiatives required to increase competition; and

(C) remaining barriers to full and open competition;


(5) recommend to the senior procurement executive—

(A) goals and the plans for increasing competition on a fiscal year basis; and

(B) a system of personal and organizational accountability for competition, which may include the use of recognition and awards to motivate program managers, contracting officers, and others in authority to promote competition in procurement programs; and


(6) describe other ways in which the executive agency has emphasized competition in programs for procurement training and research.


(c) Responsibilities.—The advocate for competition for each procuring activity is responsible for promoting full and open competition, promoting the acquisition of commercial items, and challenging barriers to acquisition, including unnecessarily restrictive statements of need, unnecessarily detailed specifications, and unnecessarily burdensome contract clauses.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3709.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1705 41:418. Pub. L. 93–400, §20, as added Pub. L. 98–369, title VII, §2732(a), July 18, 1984, 98 Stat. 1197; Pub. L. 103–355, title VIII, §8303(a), Oct. 13, 1994, 108 Stat. 3398.

§1706. Personnel evaluation

The head of each executive agency subject to division C shall ensure, with respect to the employees of that agency whose primary duties and responsibilities pertain to the award of contracts subject to the provisions of the Small Business and Federal Procurement Competition Enhancement Act of 1984 (Public Law 98–577, 98 Stat. 3066), that the performance appraisal system applicable to those employees affords appropriate recognition to, among other factors, efforts to—

(1) increase competition and achieve cost savings through the elimination of procedures that unnecessarily inhibit full and open competition;

(2) further the purposes of the Small Business and Federal Procurement Competition Enhancement Act of 1984 (Public Law 98–577, 98 Stat. 3066) and the Defense Procurement Reform Act of 1984 (Public Law 98–525, title XII, 98 Stat. 2588); and

(3) further other objectives and purposes of the Federal acquisition system authorized by law.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3710.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1706 41:414a. Pub. L. 98–577, title V, §502, Oct. 30, 1984, 98 Stat. 3085.

References in Text

The Small Business and Federal Procurement Competition Enhancement Act of 1984, referred to in text, is Pub. L. 98–577, Oct. 30, 1984, 98 Stat. 3066. For complete classification of this Act to the Code, see Short Title of 1984 Act note set out under section 101 of this title and Tables.

The Defense Procurement Reform Act of 1984, referred to in par. (2), is Pub. L. 98–525, title XII, Oct. 19, 1984, 98 Stat. 2588. For complete classification of this Act to the Code, see Short Title of 1984 Amendment note set out under section 2302 of Title 10, Armed Forces, and Tables.

§1707. Publication of proposed regulations

(a) Covered Policies, Regulations, Procedures, and Forms.—

(1) Required comment period.—Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it—

(A) relates to the expenditure of appropriated funds; and

(B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.


(2) Exception.—A policy, regulation, procedure, or form may take effect earlier than 60 days after the publication date when there are compelling circumstances for the earlier effective date, but the effective date may not be less than 30 days after the publication date.


(b) Publication in Federal Register and Comment Period.—Subject to subsection (c), the head of the agency shall have published in the Federal Register a notice of the proposed procurement policy, regulation, procedure, or form and provide for a public comment period for receiving and considering the views of all interested parties on the proposal. The length of the comment period may not be less than 30 days.

(c) Contents of Notice.—Notice of a proposed procurement policy, regulation, procedure, or form prepared for publication in the Federal Register shall include—

(1) the text of the proposal or, if it is impracticable to publish the full text of the proposal, a summary of the proposal and a statement specifying the name, address, and telephone number of the officer or employee of the executive agency from whom the full text may be obtained; and

(2) a request for interested parties to submit comments on the proposal and the name and address of the officer or employee of the Federal Government designated to receive the comments.


(d) Waiver.—The requirements of subsections (a) and (b) may be waived by the officer authorized to issue a procurement policy, regulation, procedure, or form if urgent and compelling circumstances make compliance with the requirements impracticable.

(e) Effectiveness of Policy, Regulation, Procedure, or Form.—

(1) Temporary basis.—A procurement policy, regulation, procedure, or form for which the requirements of subsections (a) and (b) are waived under subsection (d) is effective on a temporary basis if—

(A) a notice of the policy, regulation, procedure, or form is published in the Federal Register and includes a statement that the policy, regulation, procedure, or form is temporary; and

(B) provision is made for a public comment period of 30 days beginning on the date on which the notice is published.


(2) Final policy, regulation, procedure, or form.—After considering the comments received, the head of the agency waiving the requirements of subsections (a) and (b) under subsection (d) may issue the final procurement policy, regulation, procedure, or form.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3710.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1707 41:418b. Pub. L. 93–400, §22, as added Pub. L. 98–577, title III, §302(a), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 103–355, title V, §5092, Oct. 13, 1994, 108 Stat. 3362, as amended Pub. L. 104–106, title XLIII, §4321(a)(9), Feb. 10, 1996, 110 Stat. 671.

In subsection (a)(2), the words "Notwithstanding the preceding sentence" are omitted as unnecessary.

§1708. Procurement notice

(a) Notice Requirement.—Except as provided in subsection (b)—

(1) an executive agency intending to solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, but not to exceed $25,000, shall post, for not less than 10 days, in a public place at the contracting office issuing the solicitation a notice of solicitation described in subsection (c);

(2) an executive agency shall publish a notice of solicitation described in subsection (c) if the agency intends to—

(A) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or

(B) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement; and


(3) an executive agency awarding a contract for property or services for a price exceeding $25,000, or placing an order exceeding $25,000 under a basic agreement, basic ordering agreement, or similar arrangement, shall furnish for publication a notice announcing the award or order if there is likely to be a subcontract under the contract or order.


(b) Exemptions.—

(1) In general.—A notice is not required under subsection (a) if—

(A) the proposed procurement is for an amount not greater than the simplified acquisition threshold and is to be conducted by—

(i) using widespread electronic public notice of the solicitation in a form that allows convenient and universal user access through a single, Government-wide point of entry; and

(ii) permitting the public to respond to the solicitation electronically;


(B) the notice would disclose the executive agency's needs and disclosure would compromise national security;

(C) the proposed procurement would result from acceptance of—

(i) an unsolicited proposal that demonstrates a unique and innovative research concept and publication of a notice of the unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or

(ii) a proposal submitted under section 9 of the Small Business Act (15 U.S.C. 638);


(D) the procurement is made against an order placed under a requirements contract, a task order contract, or a delivery order contract;

(E) the procurement is made for perishable subsistence supplies;

(F) the procurement is for utility services, other than telecommunication services, and only one source is available; or

(G) the procurement is for the services of an expert for use in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government in a trial, hearing, or proceeding before a court, administrative tribunal, or agency, or in any part of an alternative dispute resolution process, whether or not the expert is expected to testify.


(2) Certain procurements.—The requirements of subsection (a)(2) do not apply to a procurement—

(A) under conditions described in paragraph (2), (3), (4), (5), or (7) of section 3304(a) of this title or paragraph (2), (3), (4), (5), or (7) of section 2304(c) of title 10; or

(B) for which the head of the executive agency makes a determination in writing, after consultation with the Administrator and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation.


(3) Implementation consistent with international agreements.—Paragraph (1)(A) shall be implemented in a manner consistent with applicable international agreements.


(c) Contents of Notice.—Each notice of solicitation required by paragraph (1) or (2) of subsection (a) shall include—

(1) an accurate description of the property or services to be contracted for, which description—

(A) shall not be unnecessarily restrictive of competition; and

(B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the item's form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested;


(2) provisions that—

(A)(i) state whether the technical data required to respond to the solicitation will not be furnished as part of the solicitation; and

(ii) identify the source in the Federal Government, if any, from which the technical data may be obtained; and

(B)(i) state whether an offeror or its product or service must meet a qualification requirement in order to be eligible for award; and

(ii) if so, identify the office from which the qualification requirement may be obtained;


(3) the name, business address, and telephone number of the contracting officer;

(4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) that the agency shall consider;

(5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of those procedures and the identity of the intended source; and

(6) in the case of a contract in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold, or a contract for the procurement of commercial items using special simplified procedures—

(A) a description of the procedures to be used in awarding the contract; and

(B) a statement specifying the periods for prospective offerors and the contracting officer to take the necessary preaward and award actions.


(d) Electronic Publication of Notice of Solicitation, Award, or Order.—A notice of solicitation, award, or order required to be published under subsection (a) shall be published by electronic means. The notice must be electronically accessible in a form that allows convenient and universal user access through the single Government-wide point of entry designated in the Federal Acquisition Regulation.

(e) Time Limitations.—

(1) Issuing notice of solicitation and establishing deadline for submitting bids and proposals.—An executive agency required by subsection (a)(2) to publish a notice of solicitation may not—

(A) issue the solicitation earlier than 15 days after the date on which the notice is published; or

(B) in the case of a contract or order expected to be greater than the simplified acquisition threshold, establish a deadline for the submission of all bids or proposals in response to the notice required by subsection (a)(2) that—

(i) in the case of a solicitation for research and development, is earlier than 45 days after the date the notice required for a bid or proposal for a contract described in subsection (a)(2)(A) is published;

(ii) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than 30 days after the date the notice required for an order described in subsection (a)(2)(B) is published; or

(iii) in any other case, is earlier than 30 days after the date the solicitation is issued.


(2) Establishing deadline when none provided by statute.—An executive agency shall establish a deadline for the submission of all bids or proposals in response to a solicitation for which a deadline is not provided by statute. Each deadline for the submission of offers shall afford potential offerors a reasonable opportunity to respond.

(3) Flexible deadlines.—The Administrator shall prescribe regulations defining limited circumstances in which flexible deadlines can be used under paragraph (1) for the issuance of solicitations and the submission of bids or proposals for the procurement of commercial items.


(f) Consideration of Certain Timely Received Offers.—An executive agency intending to solicit offers for a contract for which a notice of solicitation is required to be posted under subsection (a)(1) shall ensure that contracting officers consider each responsive offer timely received from an offeror.

(g) Availability of Complete Solicitation Package and Payment of Fee.—An executive agency shall make available to a business concern, or the authorized representative of a concern, the complete solicitation package for any on-going procurement announced pursuant to a notice of solicitation under subsection (a). An executive agency may require the payment of a fee, not exceeding the actual cost of duplication, for a copy of the package.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3711.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1708(a) 41:416(a)(1). Pub. L. 93–400, §18, as added Pub. L. 98–369, title VII, §2732(a), July 18, 1984, 98 Stat. 1195; Pub. L. 98–577, title III, §303(a), Oct. 30, 1984, 98 Stat. 3077; Pub. L. 99–500, §101(c) [title X, §922(b), (d)(2)], Oct. 18, 1986, 100 Stat. 1783–151, 1783-152; Pub. L. 99–591, §101(c) [title X, §922(b), (d)(2)], Oct. 30, 1986, 100 Stat. 3341–151, 3341-152; Pub. L. 99–661, title IX, formerly title IV, §922(b), (d)(2), Nov. 14, 1986, 100 Stat. 3931, 3932, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–510, title VIII, §806(d), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103–355, title I, §1055(b)(1), title IV, §§4201(b), (c), 4202(a)–(c), title VIII, §8302, title IX, §9001(b), Oct. 13, 1994, 108 Stat. 3265, 3344, 3398, 3402; Pub. L. 104–106, title XLI, §4101(c), title XLII, §4202(d), title XLIII, §§4310, 4321(h)(3), Feb. 10, 1996, 110 Stat. 642, 654, 670, 675; Pub. L. 105–85, title VIII, §850(e)(2), Nov. 18, 1997, 111 Stat. 1849; Pub. L. 105–261, title X, §1069(d)(1), Oct. 17, 1998, 112 Stat. 2136; Pub. L. 106–398, §1 [[div. A], title VIII, §810(a), (b)], Oct. 30, 2000, 114 Stat. 1654A–209; Pub. L 107–296, title VIII, §833(c)(2), Nov. 25, 2002, 116 Stat. 2226.
1708(b)(1), (2) 41:416(c).
1708(b)(3) no source.
1708(c) 41:416(b).
1708(d) 41:416(a)(2), (7).
1708(e) 41:416(a)(3), (5), (6).
1708(f) 41:416(a)(4).
1708(g) 41:416(d).

In subsection (a)(3), the words "under a basic agreement, basic ordering agreement, or similar arrangement" are substituted for "referred to in clause (A)(ii)" for clarity. The words "by the Secretary of Commerce" are omitted as obsolete. The Secretary of Commerce no longer has responsibility for publishing notices of awards or orders. See revision note for subsection (d).

In subsection (b)(2), the text of 41 U.S.C. 416(C)(1)(H) is omitted because the procurement authority of the Secretary of Homeland Security pursuant to the special procedures provided in section 833(c) of the Homeland Security Act of 2002 (6 U.S.C. 339(c)) expired on September 30, 2007.

Subsection (b)(3) is added because of section 850(e)(3) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85, 111 Stat. 1849, 15:637 note), which in part provided that the amendments made by section 850(e)(2), which amended 41:416(c)(1), be implemented in a manner consistent with applicable international agreements.

Subsection (d) is substituted for 41:416(a)(2) and (7) to eliminate unnecessary words. Federal Business Opportunities is the designated single point of universal electronic public access for publication of all procurement information and notices previously published by the Secretary of Commerce in the Commerce Business Daily. See 66 Fed. Reg. 27407, May 16, 2001, 68 Fed. Reg. 56678, October 1, 2003, 48 CFR ch. 1, subch. B, part 5, and the special notice posted in CBDNet on December 28, 2001, and printed on January 2, 2002. The special notice can be found by going to http://cbdnet.gpo.gov and clicking on "Federal Business Opportunities to replace the Commerce Business Daily".

In subsection (e)(1)(B)(i), the words "required for a bid or proposal for a contract described in" are substituted for "required by" for clarity.

In subsection (e)(1)(B)(ii), the words "required for an order described in" are substituted for "required by" for clarity.

Applicability to Tennessee Valley Authority

Pub. L. 98–577, title III, §303(c), Oct. 30, 1984, 98 Stat. 3079, provided that: "The provisions of the amendments made by subsection (a) of this section [see Tables for classification] shall apply to the Tennessee Valley Authority only with respect to procurements to be paid from appropriated funds."

§1709. Contracting functions performed by Federal personnel

(a) Covered Personnel.—Personnel referred to in subsection (b) are—

(1) an employee, as defined in section 2105 of title 5;

(2) a member of the armed forces; and

(3) an individual assigned to a Federal agency pursuant to subchapter VI of chapter 33 of title 5.


(b) Limitation on Payment for Advisory and Assistance Services.—No individual who is not an individual described in subsection (a) may be paid by an executive agency for services to conduct evaluations or analyses of any aspect of a proposal submitted for an acquisition unless personnel described in subsection (a) with adequate training and capabilities to perform the evaluations and analyses are not readily available in the agency or another Federal agency. When administering this subsection, the head of each executive agency shall determine in accordance with standards and procedures prescribed in the Federal Acquisition Regulation whether—

(1) a sufficient number of personnel described in subsection (a) in the agency or another Federal agency are readily available to perform a particular evaluation or analysis for the head of the executive agency making the determination; and

(2) the readily available personnel have the training and capabilities necessary to perform the evaluation or analysis.


(c) Certain Relationship Not Affected.—This section does not affect the relationship between the Federal Government and a Federally funded research and development center.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3714.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1709(a) 41:419(b). Pub. L. 93–400, §23, as added Pub. L. 103–355, title VI, §6002(a), Oct. 13, 1994, 108 Stat. 3363.
1709(b) 41:419(a).
1709(c) 41:419(c).

In subsection (a), before paragraph (1), the words "Personnel referred to in subsection (b) are" are substituted for "For purposes of subsection (a) of this section, the personnel described in this subsection are as follows" to eliminate unnecessary words. In paragraph (3), the words "employee from State or local governments" are substituted for "person" for clarity.

Senate Revision Amendment

In subsec. (a)(3), "individual" substituted for "employee from State or local governments" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. S8442, Dec. 2, 2010 (daily ed.).

Requirement for Guidance and Regulations

Pub. L. 103–355, title VI, §6002(b), Oct. 13, 1994, 108 Stat. 3363, provided that: "The Federal Acquisition Regulatory Council established by section 25(a) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 421(a)) [now 41 U.S.C. 1302(a)] shall—

"(1) review part 37 of title 48 of the Code of Federal Regulations as it relates to the use of advisory and assistance services; and

"(2) provide guidance and promulgate regulations regarding—

"(A) what actions Federal agencies are required to take to determine whether expertise is readily available within the Federal Government before contracting for advisory and technical services to conduct acquisitions; and

"(B) the manner in which personnel with expertise may be shared with agencies needing expertise for such acquisitions."

§1710. Public-private competition required before conversion to contractor performance

(a) Public-private competition.—

(1) When conversion to contractor performance is allowed.—A function of an executive agency performed by 10 or more agency civilian employees may not be converted, in whole or in part, to performance by a contractor unless the conversion is based on the results of a public-private competition that—

(A) formally compares the cost of performance of the function by agency civilian employees with the cost of performance by a contractor;

(B) creates an agency tender, including a most efficient organization plan, in accordance with Office of Management and Budget Circular A76, as implemented on May 29, 2003, or any successor circular;

(C) includes the issuance of a solicitation;

(D) determines whether the submitted offers meet the needs of the executive agency with respect to factors other than cost, including quality, reliability, and timeliness;

(E) examines the cost of performance of the function by agency civilian employees and the cost of performance of the function by one or more contractors to demonstrate whether converting to performance by a contractor will result in savings to the Federal Government over the life of the contract, including—

(i) the estimated cost to the Federal Government (based on offers received) for performance of the function by a contractor;

(ii) the estimated cost to the Federal Government for performance of the function by agency civilian employees; and

(iii) an estimate of all other costs and expenditures that the Federal Government would incur because of the award of the contract;


(F) requires continued performance of the function by agency civilian employees unless the difference in the cost of performance of the function by a contractor compared to the cost of performance of the function by agency civilian employees would, over all performance periods required by the solicitation, be equal to or exceed the lesser of—

(i) 10 percent of the personnel-related costs for performance of that function in the agency tender; or

(ii) $10,000,000; and


(G) examines the effect of performance of the function by a contractor on the agency mission associated with the performance of the function.


(2) Not a new requirement.—A function that is performed by the executive agency and is reengineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient, but still essentially provides the same service, shall not be considered a new requirement.

(3) Prohibitions.—In no case may a function being performed by executive agency personnel be—

(A) modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from the requirements of this section; or

(B) converted to performance by a contractor to circumvent a civilian personnel ceiling.


(b) Consulting With Affected Employees or Their Representatives.—

(1) Consulting with affected employees.—Each civilian employee of an executive agency responsible for determining under Office of Management and Budget Circular A76 whether to convert to contractor performance any function of the executive agency—

(A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of the employees on the development and preparation of that statement and that study; and

(B) may consult with the employees on other matters relating to that determination.


(2) Consulting with representatives.—

(A) Employees represented by a labor organization.—In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5, consultation with representatives of that labor organization shall satisfy the consultation requirement in paragraph (1).

(B) Employees not represented by a labor organization.—In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1).


(3) Regulations.—The head of each executive agency shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in paragraph (2)(B) for purposes of consultation required by paragraph (1).


(c) Congressional Notification.—

(1) Report.—Before commencing a public-private competition under subsection (a), the head of an executive agency shall submit to Congress a report containing the following:

(A) The function for which the public-private competition is to be conducted.

(B) The location at which the function is performed by agency civilian employees.

(C) The number of agency civilian employee positions potentially affected.

(D) The anticipated length and cost of the public-private competition, and a specific identification of the budgetary line item from which funds will be used to cover the cost of the public-private competition.

(E) A certification that a proposed performance of the function by a contractor is not a result of a decision by an official of an executive agency to impose predetermined constraints or limitations on agency civilian employees in terms of man years, end strengths, full-time equivalent positions, or maximum number of employees.


(2) Examination of potential economic effect.—The report required under paragraph (1) shall include an examination of the potential economic effect of performance of the function by a contractor on—

(A) agency civilian employees who would be affected by such a conversion in performance; and

(B) the local community and the Federal Government, if more than 50 agency civilian employees perform the function.


(3) Objections to public-private competition.—

(A) Grounds.—A representative individual or entity at a facility where a public-private competition is conducted may submit to the head of the executive agency an objection to the public-private competition on the grounds that—

(i) the report required by paragraph (1) has not been submitted; or

(ii) the certification required by paragraph (1)(E) was not included in the report required by paragraph (1).


(B) Deadlines.—The objection shall be in writing and shall be submitted within 90 days after the following date:

(i) In the case of a failure to submit the report when required, the date on which the representative individual or an official of the representative entity authorized to pose the objection first knew or should have known of that failure.

(ii) In the case of a failure to include the certification in a submitted report, the date on which the report was submitted to Congress.


(C) Report and certification required before solicitation or award of contract.—If the head of the executive agency determines that the report required by paragraph (1) was not submitted or that the required certification was not included in the submitted report, the function for which the public-private competition was conducted for which the objection was submitted may not be the subject of a solicitation of offers for, or award of, a contract until, respectively, the report is submitted or a report containing the certification in full compliance with the certification requirement is submitted.


(d) Exemption for the Purchase of Products and Services of the Blind and Other Severely Disabled People.—This section shall not apply to a commercial or industrial type function of an executive agency that is—

(1) included on the procurement list established pursuant to section 8503 of this title; or

(2) planned to be changed to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely disabled people in accordance with chapter 85 of this title.


(e) Inapplicability During War or Emergency.—The provisions of this section shall not apply during war or during a period of national emergency declared by the President or Congress.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3715.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1710 41:439. Pub. L. 93–400, §43, as added Pub. L. 110–181, title III, §327(a), Jan. 28, 2008, 122 Stat. 63.

In the heading for subsection (d) and in subsection (d)(2), the words "disabled people" are substituted for "handicapped persons" for consistency with chapter 85 of the revised title.

§1711. Value engineering

Each executive agency shall establish and maintain cost-effective procedures and processes for analyzing the functions of a program, project, system, product, item of equipment, building, facility, service, or supply of the agency. The analysis shall be—

(1) performed by qualified agency or contractor personnel; and

(2) directed at improving performance, reliability, quality, safety, and life cycle costs.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3718.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1711 41:432. Pub. L. 93–400, §36, as added Pub. L. 104–106, title XLIII, §4306(a), Feb. 10, 1996, 110 Stat. 665.

§1712. Record requirements

(a) Maintaining Records on Computer.—Each executive agency shall establish and maintain for 5 years a computer file, by fiscal year, containing unclassified records of all procurements greater than the simplified acquisition threshold in that fiscal year.

(b) Contents.—The record established under subsection (a) shall include, with respect to each procurement carried out using—

(1) competitive procedures—

(A) the date of contract award;

(B) information identifying the source to whom the contract was awarded;

(C) the property or services the Federal Government obtains under the procurement; and

(D) the total cost of the procurement; or


(2) procedures other than competitive procedures—

(A) the information described in paragraph (1);

(B) the reason under section 3304(a) of this title or section 2304(c) of title 10 for using the procedures; and

(C) the identity of the organization or activity that conducted the procurement.


(c) Separate Record Category for Procurements Resulting in One Bid or Proposal.—Information included in a record pursuant to subsection (b)(1) that relates to procurements resulting in the submission of a bid or proposal by only one responsible source shall be separately categorized from the information relating to other procurements included in the record. The record of that information shall be designated "noncompetitive procurements using competitive procedures".

(d) Transmission and Data Entry of Information.—The head of each executive agency shall—

(1) ensure the accuracy of the information included in the record established and maintained by the agency under subsection (a); and

(2) transmit in a timely manner such information to the General Services Administration for entry into the Federal Procurement Data System referred to in section 1122(a)(4) of this title, or any successor system.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3718.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1712 41:417. Pub. L. 93–400, §19, as added Pub. L. 98–369, title VII, §2732(a), July 18, 1984, 98 Stat. 1197; Pub. L. 103–355, title IV, §4403, Oct. 13, 1994, 108 Stat. 3349; Pub. L. 110–417, title VIII, §874(b), Oct. 14, 2008, 122 Stat. 4558.

§1713. Procurement data

(a) Definitions.—In this section:

(1) Qualified hubzone small business concern.—The term "qualified HUBZone small business concern" has the meaning given that term in section 3(p) of the Small Business Act (15 U.S.C. 632(p)).

(2) Small business concern owned and controlled by socially and economically disadvantaged individuals.—The term "small business concern owned and controlled by socially and economically disadvantaged individuals" has the meaning given that term in section 8(d) of the Small Business Act (15 U.S.C. 637(d)).

(3) Small business concern owned and controlled by women.—The term "small business concern owned and controlled by women" has the meaning given that term in section 8(d) of the Small Business Act (15 U.S.C. 637(d)) and section 204 of the Women's Business Ownership Act of 1988 (Public Law 100–533, 102 Stat. 2692).


(b) Reporting.—Each Federal agency shall report to the Office of Federal Procurement Policy the number of qualified HUBZone small business concerns, the number of small businesses owned and controlled by women, and the number of small business concerns owned and controlled by socially and economically disadvantaged individuals, by gender, that are first time recipients of contracts from the agency. The Office shall take appropriate action to ascertain, for each fiscal year, the number of those small businesses that have newly entered the Federal market.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3719.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1713(a) 41:417a(b). Pub. L. 100–533, title V, §502, Oct. 25, 1988, 102 Stat. 2697; Pub. L. 105–135, title VI, §604(f)(2), Dec. 2, 1997, 111 Stat. 2634.
1713(b) 41:417a(a).

In subsection (b), the words "socially and economically disadvantaged individuals" are substituted for "socially and economically disadvantaged businesses" for consistency with the term set out in subsection (a).

References in Text

Section 204 of the Women's Business Ownership Act of 1988, referred to in subsec. (a)(3), is section 204 of Pub. L. 100–533, which is set out as a note under section 637 of Title 15, Commerce and Trade.

CHAPTER 19—SIMPLIFIED ACQUISITION PROCEDURES

Sec.
1901.
Simplified acquisition procedures.
1902.
Procedures applicable to purchases below micro-purchase threshold.
1903.
Special emergency procurement authority.
1904.
Certain transactions for defense against attack.
1905.
List of laws inapplicable to contracts or subcontracts not greater than simplified acquisition threshold.
1906.
List of laws inapplicable to procurements of commercial items.
1907.
List of laws inapplicable to procurements of commercially available off-the-shelf items.
1908.
Inflation adjustment of acquisition-related dollar thresholds.
1909.
Management of purchase cards.

        

Amendments

2012Pub. L. 112–194, §2(a)(2), Oct. 5, 2012, 126 Stat. 1447, added item 1909.

§1901. Simplified acquisition procedures

(a) When Procedures Are To Be Used.—To promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for special simplified procedures for purchases of property and services for amounts—

(1) not greater than the simplified acquisition threshold; and

(2) greater than the simplified acquisition threshold but not greater than $5,000,000 for which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items.


(b) Prohibition on Dividing Purchases.—A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts to use the simplified acquisition procedures required by subsection (a).

(c) Promotion of Competition Required.—When using simplified acquisition procedures, the head of an executive agency shall promote competition to the maximum extent practicable.

(d) Consideration of Offers Timely Received.—The simplified acquisition procedures contained in the Federal Acquisition Regulation shall include a requirement that a contracting officer consider each responsive offer timely received from an eligible offeror.

(e) Special Rules for Commercial Items.—The Federal Acquisition Regulation shall provide that an executive agency using special simplified procedures to purchase commercial items—

(1) shall publish a notice in accordance with section 1708 of this title and, as provided in section 1708(c)(4) of this title, permit all responsible sources to submit a bid, proposal, or quotation (as appropriate) that the agency shall consider;

(2) may not conduct the purchase on a sole source basis unless the need to do so is justified in writing and approved in accordance with section 2304(f) of title 10 or section 3304(e) of this title, as applicable; and

(3) shall include in the contract file a written description of the procedures used in awarding the contract and the number of offers received.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3719.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1901 41:427. Pub. L. 93–400, §31, as added Pub. L. 103–355, title IV, §4201(a), Oct. 13, 1994, 108 Stat. 3342; Pub. L. 104–106, title XLII, §4202(c), title XLIII, §4302(b), Feb. 10, 1996, 110 Stat. 653, 658, as amended Pub. L. 104–201, title X, §1074(b)(6) (less effective date), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 105–85, title VIII, §850(d), Nov. 18, 1997, 111 Stat. 1848.

Section 31(e) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(e)) is omitted as obsolete.

In subsection (e)(2), the reference to section 253 of this title is limited to section 3303(e) of the revised title for clarity.

§1902. Procedures applicable to purchases below micro-purchase threshold

(a) Definition.—For purposes of this section, the micro-purchase threshold is $3,000.

(b) Compliance With Certain Requirements and Nonapplicability of Certain Authority.—

(1) Compliance with certain requirements.—The head of each executive agency shall ensure that procuring activities of that agency, when awarding a contract with a price exceeding the micro-purchase threshold, comply with the requirements of section 8(a) of the Small Business Act (15 U.S.C. 637(a)), section 2323 of title 10, and section 7102 of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 15 U.S.C. 644 note).

(2) Nonapplicability of certain authority.—The authority under part 13.106(a)(1) of the Federal Acquisition Regulation (48 C.F.R. 13.106(a)(1)), as in effect on November 18, 1993, to make purchases without securing competitive quotations does not apply to a purchase with a price exceeding the micro-purchase threshold.


(c) Nonapplicability of Certain Provisions.—An executive agency purchase with an anticipated value of the micro-purchase threshold or less is not subject to section 15(j) of the Small Business Act (15 U.S.C. 644(j)) and chapter 83 of this title.

(d) Purchases Without Competitive Quotations.—A purchase not greater than $3,000 may be made without obtaining competitive quotations if an employee of an executive agency or a member of the armed forces, authorized to do so, determines that the price for the purchase is reasonable.

(e) Equitable Distribution.—Purchases not greater than $3,000 shall be distributed equitably among qualified suppliers.

(f) Implementation Through Federal Acquisition Regulation.—This section shall be implemented through the Federal Acquisition Regulation.

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3720.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
1902 41:428. Pub. L. 93–400, §32, as added Pub. L. 103–355, title IV, §4301(a), Oct. 13, 1994, 108 Stat. 3346;