Subpart H—Contract Management

Editorial Notes

Amendments

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1830, added subpart heading.

CHAPTER 361—CONTRACT ADMINISTRATION

        

Editorial Notes

Prior Provisions

A prior chapter 361 "CONTRACT ADMINISTRATION", consisting of reserved section 4601, was repealed by Pub. L. 116–283, div. A, title XVIII, §1861(a), Jan. 1, 2021, 134 Stat. 4277.

Another prior chapter 361, consisting of sections 3811 to 3820 relating to separation for various reasons, some of which had previously been repealed, was repealed in its entirety by Pub. L. 103–337, div. A, title XVI, §§1629(a)(2), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Statutory Notes and Related Subsidiaries

Modification of Contracts and Options To Provide Economic Price Adjustments

Pub. L. 118–31, div. A, title VIII, §826, Dec. 22, 2023, 137 Stat. 335, provided that:

"(a) Authority.—Amounts authorized to be appropriated by this Act [see Tables for classification] for the Department of Defense may be used to modify the terms and conditions of a contract or option to provide an economic price adjustment consistent with sections 16.203–1 and 16.203–2 of the Federal Acquisition Regulation during the relevant period of performance for that contract or option and as specified in section 16.203–3 of the Federal Acquisition Regulation, to the extent and in such amounts as specifically provided in advance in appropriations Acts for the purposes of this section.

"(b) Guidance.—Not later than 30 days after the date of the enactment of this Act [Dec. 22, 2023], the Under Secretary of Defense for Acquisition and Sustainment shall issue guidance implementing the authority under this section."

Modifications to Earned Value Management System Requirements

Pub. L. 118–31, div. A, title VIII, §827, Dec. 22, 2023, 137 Stat. 335, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 22, 2023], the Department of Defense Supplement to the Federal Acquisition Regulation shall be revised to—

"(1) exempt all software contracts and subcontracts of the Department of Defense from earned value management system requirements;

"(2) impose earned value management system requirements for cost contracts or incentive contracts with a value greater than or equal to $20,000,000 and less than $50,000,000; and

"(3) require a defense contractor to use an earned value management system for contracts awarded with a value greater than or equal to $50,000,000 and less than $100,000,000.

"(b) Implementation.—If the Department of Defense Supplement to the Federal Acquisition Regulation is not revised as described in subsection (a) before the deadline specified in such subsection, the Under Secretary of Defense for Acquisition and Sustainment shall provide to the Committees on Armed Services of the Senate and the House of Representatives a briefing on the timeline for such revisions."

Contract Closeout Authority

Pub. L. 114–328, div. A, title VIII, §836, Dec. 23, 2016, 130 Stat. 2285, as amended by Pub. L. 115–91, div. A, title VIII, §824, Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–283, div. A, title VIII, §820, Jan. 1, 2021, 134 Stat. 3752, provided that:

"(a) Authority.—The Secretary of Defense may close out a contract or group of contracts as described in subsection (b) through the issuance of one or more modifications to such contracts without completing a reconciliation audit or other corrective action. To accomplish closeout of such contracts—

"(1) remaining contract balances may be offset with balances in other contract line items within a contract regardless of the year or type of appropriation obligated to fund each contract line item and regardless of whether the appropriation for such contract line item has closed; and

"(2) remaining contract balances may be offset with balances on other contracts regardless of the year or type of appropriation obligated to fund each contract and regardless of whether the appropriation has closed.

"(b) Covered Contracts.—This section covers any contract or group of contracts between the Department of Defense and a defense contractor, each one of which—

"(1) was entered into—

"(A) with respect to a contract or group of contracts not described in subparagraph (B), at least 7 fiscal years before the current fiscal year; and

"(B) with respect to a contract or group of contracts for military construction (as defined in section 2801 of title 10, United States Code) or shipbuilding, at least 10 fiscal years before the current fiscal year;

"(2) the performance or delivery has been completed at least 4 years before the current fiscal year; and

"(3) is determined by the Secretary of Defense to be not otherwise reconcilable because—

"(A) the records have been destroyed or lost; or

"(B) the records are available but the Secretary of Defense has determined that the time or effort required to determine the exact amount owed to the United States Government or amount owed to the contractor is disproportionate to the amount at issue.

"(c) Negotiated Settlement Authority.—Any contract or group of contracts covered by this section may be closed out through a negotiated settlement with the contractor.

"(d) Waiver Authority.—

"(1) In general.—The Secretary of Defense is authorized to waive any provision of acquisition law or regulation to carry out the authority under subsection (a).

"(2) Notification requirement.—The Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] not later than 10 days after exercising the authority under subsection (d). The notice shall include an identification of each provision of law or regulation waived.

"(e) Adjustment and Closure of Records.—After closeout of any contract described in subsection (b) using the authority under this section, the payment or accounting offices concerned may adjust and close any open finance and accounting records relating to the contract.

"(f) No Liability.—No liability shall attach to any accounting, certifying, or payment official, or any contracting officer, for any adjustments or closeout made pursuant to the authority under this section.

"(g) Regulations.—The Secretary of Defense shall prescribe regulations for the administration of the authority under this section."

Consideration of Potential Program Cost Increases and Schedule Delays Resulting From Oversight of Defense Acquisition Programs

Pub. L. 114–92, div. A, title VIII, §881, Nov. 25, 2015, 129 Stat. 942, as amended by Pub. L. 115–232, div. A, title X, §1081(f)(1)(A)(iv), Aug. 13, 2018, 132 Stat. 1986, provided that:

"(a) Avoidance of Unnecessary Cost Increases and Schedule Delays.—The Director of Operational Test and Evaluation, the Chief Management Officer, the Director of the Defense Contract Management Agency, the Director of the Defense Contract Audit Agency, the Inspector General of the Department of Defense, and the heads of other defense audit, testing, acquisition, and management agencies shall ensure that policies, procedures, and activities implemented by their offices and agencies in connection with defense acquisition program oversight do not result in unnecessary increases in program costs or cost estimates or delays in schedule or schedule estimates.

"(b) Consideration of Private Sector Best Practices.—In considering potential cost increases and schedule delays as a result of oversight efforts pursuant to subsection (a), the officials described in such subsection shall consider private sector best practices with respect to oversight implementation."

Motor Carrier Fuel Surcharges

Pub. L. 110–417, [div. A], title VIII, §884, Oct. 14, 2008, 122 Stat. 4560, provided that:

"(a) Pass Through to Cost Bearer.—The Secretary of Defense shall take appropriate actions to ensure that, to the maximum extent practicable, in all carriage contracts in which a fuel-related adjustment is provided for, any fuel-related adjustment is passed through to the person who bears the cost of the fuel that the adjustment relates to.

"(b) Use of Contract Clause.—The actions taken by the Secretary under subsection (a) shall include the insertion of a contract clause, with appropriate flow-down requirements, into all contracts with motor carriers, brokers, or freight forwarders providing or arranging truck transportation or services in which a fuel-related adjustment is provided for.

"(c) Disclosure.—The Secretary shall publicly disclose any decision by the Department of Defense to pay fuel-related adjustments under contracts (or a category of contracts) covered by this section.

"(d) Report.—Not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary shall submit to the committees on Armed Services of the Senate and the House of Representatives a report on the actions taken in accordance with the requirements of subsection (a)."

[Position of Chief Management Officer of the Department of Defense effectively abolished upon the repeal of section 132a of this title by Pub. L. 116–283, div. A, title IX, §901(a)(1), Jan. 1, 2021, 134 Stat. 3794. Duties, personnel, and functions of the Chief Management Officer transferred to other Department of Defense officers, employees, and organizations, and any reference to the Chief Management Officer of the Department of Defense to be deemed to refer to the applicable Department of Defense officer or employee as so designated, see section 901(b), (c) of Pub. L. 116–283, set out in a note under former section 132a of this title.]

Linking of Award and Incentive Fees to Acquisition Outcomes

Pub. L. 111–84, div. A, title VIII, §823, Oct. 28, 2009, 123 Stat. 2412, as amended by Pub. L. 111–383, div. A, title VIII, §834(a)–(c), Jan. 7, 2011, 124 Stat. 4278, 4279, provided that:

"(a) Authority To Reduce or Deny Award Fees.—Not later than 180 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall revise the guidance issued pursuant to section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 129 [120] Stat. 2321) [set out below] to ensure that all covered contracts using award fees—

"(1) provide for the consideration of any incident described in subsection (b) in evaluations of contractor performance for the relevant award fee period; and

"(2) authorize the Secretary to reduce or deny award fees for the relevant award fee period, or to recover all or part of award fees previously paid for such period, on the basis of the negative impact of such incident on contractor performance.

"(b) Covered Incidents.—An incident referred to in subsection (a) is any incident in which the contractor—

"(1) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), in the performance of a covered contract to have caused serious bodily injury or death to any civilian or military personnel of the Government through gross negligence or with reckless disregard for the safety of such personnel; or

"(2) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), to be liable for actions of a subcontractor of the contractor that caused serious bodily injury or death to any civilian or military personnel of the Government, through gross negligence or with reckless disregard for the safety of such personnel.

"(c) List of Dispositions in Criminal, Civil, or Administrative Proceedings.—For purposes of subsection (b), the dispositions listed in this subsection are as follows:

"(1) In a criminal proceeding, a conviction.

"(2) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.

"(3) In an administrative proceeding, a finding of fault and liability that results in—

"(A) the payment of a monetary fine or penalty of $5,000 or more; or

"(B) the payment of a reimbursement, restitution, or damages in excess of $100,000.

"(4) To the maximum extent practicable and consistent with applicable laws and regulations, in a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the person if the proceeding could have led to any of the outcomes specified in paragraph (1), (2), or (3).

"(5) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to subsection (d).

"(d) Determinations of Contractor Fault by Secretary of Defense.—

"(1) In general.—In any case described by paragraph (2), the Secretary of Defense shall—

"(A) provide for an expeditious independent investigation of the causes of the serious bodily injury or death alleged to have been caused by the contractor as described in that paragraph; and

"(B) make a final determination, pursuant to procedures established by the Secretary for purposes of this subsection, whether the contractor, in the performance of a covered contract, caused such serious bodily injury or death through gross negligence or with reckless disregard for the safety of civilian or military personnel of the Government.

"(2) Covered cases.—A case described in this paragraph is any case in which the Secretary has reason to believe that—

"(A) a contractor, in the performance of a covered contract, may have caused the serious bodily injury or death of any civilian or military personnel of the Government; and

"(B) such contractor is not subject to the jurisdiction of United States courts.

"(3) Construction of determination.—A final determination under this subsection may be used only for the purpose of evaluating contractor performance, and shall not be determinative of fault for any other purpose.

"(e) Definitions.—In this section:

"(1) The term 'contractor' means a company awarded a covered contract and a subcontractor at any tier under such contract.

"(2) The term 'covered contract' means a contract awarded by the Department of Defense for the procurement of goods or services.

"(3) The term 'serious bodily injury' means a grievous physical harm that results in a permanent disability.

"(f) Effective Date.—This section shall apply with respect to contracts entered into after the date occurring 180 days after the date of the enactment of this Act [Oct. 28, 2009]."

[Pub. L. 111–383, div. A, title VIII, §834(e), Jan. 7, 2011, 124 Stat. 4279, provided that: "The requirements of section 823 of the National Defense Authorization Act for Fiscal Year 2010 [Pub. L. 111–84, set out above], as amended by subsections (a) through (c), shall apply with respect to the following:

["(1) Any contract entered into on or after the date of the enactment of this Act [Jan. 7, 2011].

["(2) Any task order or delivery order issued on or after the date of the enactment of this Act under a contract entered into before, on, or after that date."]

Pub. L. 110–329, div. C, title VIII, §8105, Sept. 30, 2008, 122 Stat. 3644, provided that: "During the current fiscal year and hereafter, none of the funds appropriated or otherwise available to the Department of Defense may be obligated or expended to provide award fees to any defense contractor contrary to the provisions of section 814 of the National Defense Authorization Act, Fiscal Year 2007 (Public Law 109–364) [set out below]."

Pub. L. 109–364, div. A, title VIII, §814, Oct. 17, 2006, 120 Stat. 2321, provided that:

"(a) Guidance on Linking of Award and Incentive Fees to Acquisition Outcomes.—Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall issue guidance, with detailed implementation instructions (including definitions), for the Department of Defense on the appropriate use of award and incentive fees in Department of Defense acquisition programs.

"(b) Elements.—The guidance under subsection (a) shall—

"(1) ensure that all new contracts using award fees link such fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);

"(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;

"(3) provide guidance on the circumstances in which contractor performance may be judged to be 'excellent' or 'superior' and the percentage of the available award fee which contractors should be paid for such performance;

"(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be 'acceptable', 'average', 'expected', 'good', or 'satisfactory';

"(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;

"(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;

"(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the military departments and Defense Agencies;

"(8) ensure that the Department of Defense—

"(A) collects relevant data on award and incentive fees paid to contractors; and

"(B) has mechanisms in place to evaluate such data on a regular basis;

"(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and

"(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.

"(c) Assessment of Independent Evaluation Mechanisms.—

"(1) In general.—The Secretary of Defense shall select a federally funded research and development center to assess various mechanisms that could be used to ensure an independent evaluation of contractor performance for the purpose of making determinations applicable to the judging and payment of award fees.

"(2) Considerations.—The assessment conducted pursuant to paragraph (1) shall include consideration of the advantages and disadvantages of a system in which award fees are—

"(A) held in a separate fund or funds of the Department of Defense; and

"(B) allocated to a specific program only upon a determination by an independent board, charged with comparing contractor performance across programs, that such fees have been earned by the contractor for such program.

"(3) Report.—The Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the assessment conducted pursuant to paragraph (1) not later than one year after the date of the enactment of this Act [Oct. 17, 2006]."

Payment Protections for Subcontractors and Suppliers

Pub. L. 102–190, div. A, title VIII, §806, Dec. 5, 1991, 105 Stat. 1417, as amended by Pub. L. 102–484, div. A, title X, §1053(5), Oct. 23, 1992, 106 Stat. 2502; Pub. L. 103–355, title II, §2091, title VIII, §8105(k), Oct. 13, 1994, 108 Stat. 3306, 3393; Pub. L. 113–291, div. A, title X, §1071(b)(15), Dec. 19, 2014, 128 Stat. 3508; Pub. L. 115–232, div. A, title VIII, §836(f)(1), Aug. 13, 2018, 132 Stat. 1870, provided that:

"(a) Regulations.—The Secretary of Defense shall prescribe in regulations the following requirements:

"(1) Information provided by department of defense relating to payment.—(A) Subject to section 552(b)(1) of title 5, United States Code, upon the request of a subcontractor or supplier of a contractor performing a Department of Defense contract, the Department of Defense shall promptly make available to such subcontractor or supplier the following information:

"(i) Whether requests for progress payments or other payments have been submitted by the contractor to the Department of Defense in connection with that contract.

"(ii) Whether final payment to the contractor has been made by the Department of Defense in connection with that contract.

"(B) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.

"(2) Information provided by department of defense relating to payment bonds.—(A) Upon the request of a subcontractor or supplier described in subparagraph (B), the Department of Defense shall promptly make available to such subcontractor or supplier any of the following:

"(i) The name and address of the surety or sureties on the payment bond.

"(ii) The penal amount of the payment bond.

"(iii) A copy of the payment bond.

"(B) Subparagraph (A) applies to—

"(i) a subcontractor or supplier having a subcontract, purchase order, or other agreement to furnish labor or material for the performance of a Department of Defense contract with respect to which a payment bond has been furnished to the United States pursuant to the Miller Act; and

"(ii) a prospective subcontractor or supplier offering to furnish labor or material for the performance of such a Department of Defense contract.

"(C) With respect to the information referred to in subparagraphs (A)(i) and (A)(ii), the regulations shall include authority for such information to be provided verbally to the subcontractor or supplier.

"(D) With respect to the information referred to in subparagraph (A)(iii), the regulations may impose reasonable fees to cover the cost of copying and providing requested bonds.

"(E) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.

"(3) Information provided by contractors relating to payment bonds.—(A) Upon the request of a prospective subcontractor or supplier offering to furnish labor or material for the performance of a Department of Defense contract with respect to which a payment bond has been furnished to the United States pursuant to the Miller Act, the contractor shall promptly make available to such prospective subcontractor or supplier a copy of the payment bond.

"(B) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act for which a solicitation is issued after the expiration of the 60-day period beginning on the effective date of the regulations promulgated under this subsection.

"(4) Procedures relating to compliance with payment terms.—(A) Under procedures established in the regulations, upon the assertion by a subcontractor or supplier of a contractor performing a Department of Defense contract that the subcontractor or supplier has not been paid by the prime contractor in accordance with the payment terms of the subcontract, purchase order, or other agreement with the prime contractor, the contracting officer may determine the following:

"(i) With respect to a construction contract, whether the contractor has made progress payments to the subcontractor or supplier in compliance with chapter 39 of title 31, United States Code.

"(ii) With respect to a contract other than a construction contract, whether the contractor has made progress or other payments to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.

"(iii) With respect to either a construction contract or a contract other than a construction contract, whether the contractor has made final payment to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.

"(iv) With respect to either a construction contract or a contract other than a construction contract, whether any certification of payment of the subcontractor or supplier accompanying the contractor's payment request to the Government is accurate.

"(B) If the contracting officer determines that the prime contractor is not in compliance with any matter referred to in clause (i), (ii), or (iii) of subparagraph (A), the contracting officer may, under procedures established in the regulations—

"(i) encourage the prime contractor to make timely payment to the subcontractor or supplier; or

"(ii) reduce or suspend progress payments with respect to amounts due to the prime contractor.

"(C) If the contracting officer determines that a certification referred to in clause (iv) of subparagraph (A) is inaccurate in any material respect, the contracting officer shall, under procedures established in the regulations, initiate appropriate administrative or other remedial action.

"(D) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date of promulgation of the regulations under this subsection or that is awarded after such date.

"(b) Inapplicability to Certain Contracts.—Regulations prescribed under this section shall not apply to a contract for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41, United States Code).

"(c) Government-Wide Applicability.—The Federal Acquisition Regulatory Council (established by section 1302(a) of title 41, United States Code) shall modify the Federal Acquisition Regulation (issued pursuant to section 1303(a)(1) of such title 41[)] to apply Government-wide the requirements that the Secretary is required under subsection (a) to prescribe in regulations applicable with respect to the Department of Defense contracts.

"(d) Assistance to Small Business Concerns.—[Amended section 15(k)(5) of the Small Business Act (15 U.S.C. 644(k)(5)).]

"(e) GAO Report.—(1) The Comptroller General of the United States shall conduct an assessment of the matters described in paragraph (2) and submit a report pursuant to paragraph (3).

"(2) In addition to such other related matters as the Comptroller General considers appropriate, the matters to be assessed pursuant to paragraph (1) are the following:

"(A) Timely payment of progress or other periodic payments to subcontractors and suppliers by prime contractors on Federal contracts by—

"(i) identifying all existing statutory and regulatory provisions, categorized by types of contracts covered by such provisions;

"(ii) evaluating the feasibility and desirability of requiring that a prime contractor (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) be required to—

"(I) include in its subcontracts a payment term requiring payment within 7 days (or some other fixed term) after receiving payment from the Government; and

"(II) submit with its payment request to the Government a certification that it has timely paid its subcontractors in accordance with their subcontracts from funds previously received as progress payments and will timely make required payments to such subcontractors from the proceeds of the progress payment covered by the certification;

"(iii) evaluating the feasibility and desirability of requiring that all prime contractors (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) furnish with its payment request to the Government proof of payment of the amounts included in such payment request for payments made to subcontractors and suppliers;

"(iv) evaluating the feasibility and desirability of requiring a prime contractor to establish an escrow account at a federally insured financial institution and requiring direct disbursements to subcontractors and suppliers of amounts certified by the prime contractor in its payment request to the Government as being payable to such subcontractors and suppliers in accordance with their subcontracts; and

"(v) evaluating the feasibility and desirability of requiring direct disbursement of amounts certified by a prime contractor as being payable to its subcontractors and suppliers in accordance with their subcontracts (using techniques such as joint payee checks, escrow accounts, or direct payment by the Government), if the contracting officer has determined that the prime contractor is failing to make timely payments to its subcontractors and suppliers.

"(B) Payment protection of subcontractors and suppliers through the use of payment bonds or alternatives methods by—

"(i) evaluating the effectiveness of the modifications to part 28.2 of the Federal Acquisition Regulation Part 28.2 (48 C.F.R. 28.200) relating to the use of individual sureties, which became effective February 26, 1990;

"(ii) evaluating the effectiveness of requiring payment bonds pursuant to the Miller Act as a means of affording protection to construction subcontractors and suppliers relating to receiving—

"(I) timely payment of progress payments due in accordance with their subcontracts; and

"(II) ultimate payment of such amounts due;

"(iii) evaluating the feasibility and desirability of increasing the payment bond amounts required under the Miller Act from the current maximum amounts to an amount equal to 100 percent of the amount of the contract;

"(iv) evaluating the feasibility and desirability of requiring payment bonds for supply and services contracts (other than construction), and, if feasible and desirable, the amounts of such bonds; and

"(v) evaluating the feasibility and desirability of using letters of credit issued by federally insured financial institutions (or other alternatives) as substitutes for payment bonds in providing payment protection to subcontractors and suppliers on construction contracts (and other contracts).

"(C) Any evaluation of feasibility and desirability carried out pursuant to subparagraph (A) or (B) shall include the appropriateness of—

"(i) any differential treatment of, or impact on, small business concerns as opposed to concerns other than small business concerns;

"(ii) any differential treatment of subcontracts relating to commercial products entered into by the contractor in furtherance of its non-Government business, especially those subcontracts entered into prior to the award of a contract by the Government; and

"(iii) extending the protections regarding payment to all tiers of subcontractors or restricting them to first-tier subcontractors and direct suppliers.

"(3) The report required by paragraph (1) shall include a description of the results of the assessment carried out pursuant to paragraph (2) and may include recommendations pertaining to any of the following:

"(A) Statutory and regulatory changes providing payment protections for subcontractors and suppliers (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) that the Comptroller General believes to be desirable and feasible.

"(B) Proposals to assess the desirability and utility of a specific payment protection on a test basis.

"(C) Such other recommendations as the Comptroller General considers appropriate in light of the matters assessed pursuant to paragraph (2).

"(4) The report required by paragraph (1) shall be submitted not later than by February 1, 1993, to the Committees on Armed Services and on Small Business [now the Committee on Small Business and Entrepreneurship of the Senate] of the Senate and House of Representatives.

"(f) Inspector General Report.—(1) The Inspector General of the Department of Defense shall submit to the Secretary of Defense a report on payment protections for subcontractors and suppliers under contracts entered into with the Department of Defense. The report shall include an assessment of the extent to which available judicial and administrative remedies, as well as suspension and debarment procedures, have been used (or recommended for use) by officials of the Department to deter false statements relating to (A) payment bonds provided by individuals pursuant to the Miller Act, and (B) certifications pertaining to payment requests by construction contractors pursuant to section 3903(b) of title 31, United States Code. The assessment shall cover actions taken during the period beginning on October 1, 1989, and ending on September 30, 1992.

"(2) The report required by paragraph (1) shall be submitted to the Secretary of Defense not later than March 1, 1993. The report may include recommendations by the Inspector General on ways to improve the effectiveness of existing methods of preventing false statements.

"(g) Miller Act Defined.—For purposes of this section, the term 'Miller Act' means the Act of August 24, 1935 (40 U.S.C. 270a–270d) [now 40 U.S.C. 3131, 3133]."

§4601. Electronic submission and processing of claims for contract payments

(a) Submission of Claims.—The Secretary of Defense shall require that any claim for payment under a Department of Defense contract shall be submitted to the Department of Defense in electronic form.

(b) Processing.—A contracting officer, contract administrator, certifying official, or other officer or employee of the Department of Defense who receives a claim for payment in electronic form in accordance with subsection (a) and is required to transmit the claim to any other officer or employee of the Department of Defense for processing under procedures of the department shall transmit the claim and any additional documentation necessary to support the determination and payment of the claim to such other officer or employee electronically.

(c) Waiver Authority.—If the Secretary of Defense determines that the requirement for using electronic means for submitting claims under subsection (a), or for transmitting claims and supporting documentation under subsection (b), is unduly burdensome in any category of cases, the Secretary may exempt the cases in that category from the application of the requirement.

(d) Implementation of Requirements.—In implementing subsections (a) and (b), the Secretary of Defense shall provide for the following:

(1) Policies, requirements, and procedures for using electronic means for the submission of claims for payment to the Department of Defense and for the transmission, between Department of Defense officials, of claims for payment received in electronic form, together with supporting documentation (such as receiving reports, contracts and contract modifications, and required certifications).

(2) The format in which information can be accepted by the corporate database of the Defense Finance and Accounting Service.

(3) The requirements to be included in contracts regarding the electronic submission of claims for payment by contractors.

(e) Claim for Payment Defined.—In this section, the term "claim for payment" means an invoice or any other demand or request for payment.

(Added Pub. L. 106–398, §1 [[div. A], title X, §1008(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-249, §2227; renumbered §4601, Pub. L. 116–283, div. A, title XVIII, §1861(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2227 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

Pub. L. 106–398, §1 [[div. A], title X, §1008(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A-250, provided that:

"(1) Subject to paragraph (2), the Secretary of Defense shall apply section 2227 of title 10, United States Code [now 10 U.S.C. 4601] (as added by subsection (a)), with respect to contracts for which solicitations of offers are issued after June 30, 2001.

"(2)(A) The Secretary may delay the implementation of section 2227 [now 4601] to a date after June 30, 2001, upon a finding that it is impracticable to implement that section until that later date. In no event, however, may the implementation be delayed to a date after October 1, 2002.

"(B) Upon determining to delay the implementation of such section 2227 [now 4601] to a later date under subparagraph (A), the Secretary shall promptly publish a notice of the delay in the Federal Register. The notice shall include a specification of the later date on which the implementation of that section is to begin. Not later than 30 days before the later implementation date, the Secretary shall publish in the Federal Register another notice that such section is being implemented beginning on that date."

[Notice by Department of Defense of delay in the implementation of this section from June 30, 2001, until Oct. 1, 2002, was published on Aug. 21, 2001, at 66 F.R. 43841.]

§4602. Contracted property and services: prompt payment of vouchers

(a) Requirement.—Of the contract vouchers that are received by the Defense Finance and Accounting Service by means of the mechanization of contract administration services system, the number of such vouchers that remain unpaid for more than 30 days as of the last day of each month may not exceed 5 percent of the total number of the contract vouchers so received that remain unpaid on that day.

(b) Contract Voucher Defined.—In this section, the term "contract voucher" means a voucher or invoice for the payment to a contractor for services or deliverable items provided by the contractor under a contract funded by the Department of Defense.

(Added Pub. L. 106–398, §1 [[div. A], title X, §1006(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-247, §2226; amended Pub. L. 111–350, §5(b)(7), Jan. 4, 2011, 124 Stat. 3842; Pub. L. 115–232, div. A, title VIII, §836(e)(1), Aug. 13, 2018, 132 Stat. 1869; renumbered §4602, Pub. L. 116–283, div. A, title XVIII, §1861(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2226 of this title as this section.

2018—Subsec. (b). Pub. L. 115–232 substituted "for services or deliverable items" for "for services, commercial items (as defined in section 103 of title 41), or other deliverable items".

2011—Subsec. (b). Pub. L. 111–350 substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date

Pub. L. 106–398, §1 [[div. A], title X, §1006(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-248, provided that: "Section 2226 of title 10, United States Code [now 10 U.S.C. 4602] (as added by subsection (a)), shall take effect on December 1, 2000."

§4603. Advance notification of contract performance outside the United States

(a) Notification.—(1) A firm that is performing a Department of Defense contract for an amount exceeding $10,000,000, or is submitting a bid or proposal for such a contract, shall notify the Department of Defense in advance of any intention of the firm or any first-tier subcontractor of the firm to perform outside the United States and Canada any part of the contract that exceeds $500,000 in value and could be performed inside the United States or Canada.

(2) If a firm submitting a bid or proposal for a Department of Defense contract is required to submit a notification under this subsection, and the firm is aware, at the time it submits its bid or proposal, that the firm intends to perform outside the United States and Canada any part of the contract that exceeds $500,000 in value and could be performed inside the United States or Canada, the firm shall include the notification in its bid or proposal.

(3) The notification by a firm under paragraph (1) with respect to a first-tier subcontractor shall be made, to the maximum extent practicable, at least 30 days before award of the subcontract.

(b) Recipient of Notification.—The firm shall transmit the notification—

(1) in the case of a contract of a military department, to such officer or employee of that military department as the Secretary of the military department may direct; and

(2) in the case of any other Department of Defense contract, to such officer or employee of the Department of Defense as the Secretary of Defense may direct.

(c) Availability of Notifications.—The Secretary of Defense shall ensure that the notifications (or copies) are maintained in compiled form for a period of 5 years after the date of submission and are available for use in the preparation of the national defense technology and industrial base assessment carried out under section 4816 of this title.

(d) Inapplicability to Certain Contracts.—This section shall not apply to contracts for any of the following:

(1) Commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41).

(2) Military construction.

(3) Ores.

(4) Natural gas.

(5) Utilities.

(6) Petroleum products and crudes.

(7) Timber.

(8) Subsistence.

(Added Pub. L. 102–484, div. A, title VIII, §840(a)(1), Oct. 23, 1992, 106 Stat. 2466, §2410g; amended Pub. L. 104–106, div. D, title XLIII, §4321(b)(16), Feb. 10, 1996, 110 Stat. 673; Pub. L. 111–350, §5(b)(30), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 115–232, div. A, title VIII, §836(e)(7), Aug. 13, 2018, 132 Stat. 1870; renumbered §4603 and amended Pub. L. 116–283, div. A, title XVIII, §§1861(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4277, 4294.)

Editorial Notes

Prior Provisions

Prior sections 4621 and 4622 were renumbered sections 7621 and 7622 of this title, respectively.

A prior section 4623, act Aug. 10, 1956, ch. 1041, 70A Stat. 258, provided that the Quartermaster Corps sell not more than 16 ounces of tobacco a month to an enlisted member of the Army on active duty who requests it, prior to repeal by Pub. L. 91–482, §1(a), Oct. 21, 1970, 84 Stat. 1082.

Prior sections 4624 to 4629 were renumbered sections 7624 to 7629 of this title, respectively.

Amendments

2021—Pub. L. 116–283, §1861(b), renumbered section 2410g of this title as this section.

Subsec. (c). Pub. L. 116–283, §1883(b)(2), substituted "section 4816" for "section 2505".

2018—Subsec. (d)(1). Pub. L. 115–232 substituted "Commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41)" for "Commercial items (as defined in section 103 of title 41)".

2011—Subsec. (d)(1). Pub. L. 111–350 substituted "section 103 of title 41)" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))".

1996—Subsec. (d)(1). Pub. L. 104–106 inserted "(as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))" before period at end.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date

Pub. L. 102–484, div. A, title VIII, §840(b), Oct. 23, 1992, 106 Stat. 2467, provided that: "Section 2410g of title 10, United States Code [now 10 U.S.C. 4603] (as added by subsection (a)), shall take effect 90 days after the date of the enactment of this Act [Oct. 23, 1992]."

CHAPTER 363—PROHIBITION AND PENALTIES

        

Editorial Notes

Prior Provisions

A prior chapter 363 "PROHIBITIONS AND PENALTIES", consisting of reserved section 4651, was repealed by Pub. L. 116–283, div. A, title XVIII, §1862(a), Jan. 1, 2021, 134 Stat. 4277.

Another prior chapter 363, consisting of sections 3841 to 3855 relating to separation or transfer to the Retired Reserve, some of which had previously been repealed, was repealed in its entirety by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Amendments

2023—Pub. L. 118–31, div. A, title VIII, §803, Dec. 22, 2023, 137 Stat. 312, added item 4662. Amendment was made pursuant to operation of section 102 of this title.

2022—Pub. L. 117–263, div. A, title VIII, §855(c), Dec. 23, 2022, 136 Stat. 2723, added item 4661.

Statutory Notes and Related Subsidiaries

Prohibition on Availability of Funds for Procurement of Certain Batteries

Pub. L. 118–31, div. A, title I, §154, Dec. 22, 2023, 137 Stat. 180, provided that:

"(a) Limitation.—Beginning on October 1, 2027, none of the funds authorized to be appropriated or otherwise made available for the Department of Defense may be obligated or expended to procure a battery produced by an entity specified in subsection (b).

"(b) Entities Specified.—The entities specified in this subsection are the following:

"(1) Contemporary Amperex Technology Company, Limited (also known as 'CATL').

"(2) BYD Company, Limited.

"(3) Envision Energy, Limited.

"(4) EVE Energy Company, Limited.

"(5) Gotion High tech Company, Limited.

"(6) Hithium Energy Storage Technology company, Limited.

"(7) Any successor to an entity specified in paragraphs (1) through (6).

"(c) Treatment of Production.—For purposes of this section, a battery shall be treated as produced by an entity specified in subsection (b) if that entity—

"(1) assembles or manufactures the final product; or

"(2) creates or otherwise provides a majority of the components used in the battery.

"(d) Waiver.—The Secretary of Defense may waive the limitation under subsection (a)."

Limitation on Sourcing Chemical Materials for Munitions From Certain Countries

Pub. L. 118–31, div. A, title II, §244, Dec. 22, 2023, 137 Stat. 209, provided that:

"(a) Limitation.—The Secretary of Defense may not procure a chemical material for munitions specified in subsection (b) from any country specified in subsection (c).

"(b) Chemical Materials Specified.—The chemical materials for munitions specified in this subsection are the chemicals listed under the heading 'Task 1: Domestic Production of Critical Chemicals' in section 3.0E of the document of the Department of Defense titled 'Statement of Objectives (SOO) for Critical Chemicals Production' (FOA: FA8650-19-S-5010, Appendix VI, Call: 012) and dated December 5, 2022.

"(c) Countries Specified.—The countries specified in this subsection are the following:

"(1) The People's Republic of China.

"(2) The Russian Federation.

"(3) The Islamic Republic of Iran.

"(4) The Democratic People's Republic of North Korea.

"(d) Effective Date.—The requirements of this section shall take effect on a date determined by the Secretary of Defense that is not later than September 30, 2028."

Prohibition on Required Disclosure by Department of Defense Contractors of Information Relating to Greenhouse Gas Emissions

Pub. L. 118–31, div. A, title III, §318, Dec. 22, 2023, 137 Stat. 218, provided that:

"(a) Prohibition on Disclosure Requirements.—

"(1) Nontraditional defense contractors.—The Secretary of Defense may not require that any nontraditional defense contractor, as a condition of being awarded a contract with the Secretary, disclose a greenhouse gas inventory or any other report on greenhouse gas emissions, unless the Secretary determines that requiring such disclosure is necessary to verify a voluntary disclosure of such inventory or other report by the nontraditional defense contractor.

"(2) Other than nontraditional defense contractors.—During the one-year period beginning on the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense may not require that any individual or entity other than a nontraditional defense contractor, as a condition of being awarded a contract with the Secretary, disclose a greenhouse gas inventory or any other report on greenhouse gas emissions, unless the Secretary determines that requiring such disclosure is necessary to verify a voluntary disclosure of such inventory or other report by the individual or entity.

"(b) Waiver.—The Secretary of Defense may issue a waiver on a contract-by-contract basis provided that the information provided is directly related to the performance of the contract. In issuing such a waiver, the Secretary of Defense shall ensure that any information that is required is clearly identifiable.

"(c) Definitions.—In this section:

(1) The term 'greenhouse gas' means—

"(A) carbon dioxide;

"(B) methane;

"(C) nitrous oxide;

"(D) nitrogen trifluoride;

"(E) hydrofluorocarbons;

"(F) perfluorocarbons; or

"(G) sulfur hexafluoride.

"(2) The term 'greenhouse gas inventory' means, with respect to a person, a quantified list of the annual greenhouse gas emissions of the person.

"(3) The term 'nontraditional defense contractor' has the meaning given the term in section 3014 of title 10, United States Code."

Prohibition on Contracting With Persons That Have Fossil Fuel Operations With the Government of the Russian Federation or the Russian Energy Sector

Pub. L. 118–31, div. A, title VIII, §804, Dec. 22, 2023, 137 Stat. 313, provided that:

"(a) Prohibition.—

"(1) In general.—Except as provided under subsections (b), (c), and (d), the Secretary of Defense may not enter into a contract for the procurement of goods or services with any person that is or that has fossil fuel business operations with a person that is not less than 50 percent owned, individually or collectively, by—

"(A) an authority of the Government of the Russian Federation; or

"(B) a fossil fuel company that operates in the Russian Federation, except if the fossil fuel company transports oil or gas—

"(i) through the Russian Federation for sale outside of the Russian Federation; and

"(ii) that was extracted from a country other than the Russian Federation with respect to the energy sector of which the President has not imposed sanctions as of the date on which the contract is awarded.

"(2) Oil and gas origin.—For the purposes of applying the exception under paragraph (1)(B), oil and gas transported by a fossil fuel company shall be deemed to have been extracted from the location of extraction specified in the certificate of origin or other documentation confirming the origin of such oil or gas unless the person with respect to which such exception would apply knew or had reason to know that such location in such documentation was false or incorrect.

"(b) Exceptions.—

"(1) In general.—The prohibition under subsection (a) does not apply to a contract that the Secretary of Defense and the Secretary of State jointly determine—

"(A) is necessary—

"(i) for purposes of providing humanitarian assistance to the people of Russia; or

"(ii) for purposes of providing disaster relief and other urgent life-saving measures;

"(B) is vital to the military readiness, basing, or operations of the United States or the North Atlantic Treaty Organization;

"(C) is vital to the national security interests of the United States; or

"(D) was a business operation with a fossil fuel company in a country other than the Russian Federation that was entered into prior to the date of the enactment of this section [Dec. 22, 2023].

"(2) Notification requirement.—The Secretary of Defense shall notify the appropriate congressional committees of any contract entered into on the basis of an exception provided for under paragraph (1).

"(3) Office of foreign assets control licenses.—The prohibition in subsection (a) shall not apply to a person that has a valid license to operate in Russia issued by the Office of Foreign Assets Control of the Department of the Treasury or is otherwise authorized to operate in Russia by the Federal Government notwithstanding the imposition of sanctions.

"(4) American diplomatic mission in russia.—The prohibition in subsection (a) shall not apply to contracts related to the operation and maintenance of the United States Government's consular offices and diplomatic posts in Russia.

"(c) Applicability.—This section shall take effect on the date of the enactment of this Act [Dec. 22, 2023] and apply with respect to any contract entered into on or after such effective date.

"(d) Sunset.—This section shall terminate on December 31, 2029.

"(e) Definitions.—In this section:

"(1) Appropriate congressional committees.—The term 'appropriate congressional committees' means—

"(A) the Committee on Oversight and Accountability, the Committee on Armed Services, and the Committee on Foreign Affairs of the House of Representatives; and

"(B) the Committee on Homeland Security and Governmental Affairs, the Committee on Armed Services, and the Committee on Foreign Relations of the Senate.

"(2) Business operations.—

"(A) In general.—The term 'business operations' means engaging in commerce in any form, including acquiring, developing, maintaining, owning, selling, possessing, leasing, or operating equipment, facilities, personnel, products, services, personal property, real property, or any other apparatus of business or commerce.

"(B) Exceptions.—The term 'business operations' does not include—

"(i) any shipment subject to price caps as specified in the 'Statement of the G7 and Australia on a Price Cap for Seaborne Russian-Origin Crude Oil', issued on December 2, 2022, between member countries of that coalition, or the price caps as specified in the 'Statement of the G7 and Australia on price caps for seaborne Russian-origin petroleum products Berlin, Brussels, Canberra, London, Ottawa, Paris, Rome, Tokyo, Washington', issued on February 4, 2023, between such members, if such shipment complies with the applicable price caps;

"(ii) actions taken for the benefit of the country of Ukraine, as determined by the Secretary of Defense; or

"(iii) actions taken to support the suspension or termination of business operations for commercial activities during the period beginning on the date of the enactment of this Act and ending on the date described in subsection (d), including—

(I) any action to secure or divest from facilities, property, or equipment;

(II) the provision of products or services provided to reduce or eliminate operations in territory internationally recognized as the Russian Federation or to comply with sanctions relating to the Russian Federation; and

(III) activities that are incident to liquidating, dissolving, or winding down a subsidiary or legal entity in Russia.

"(3) Fossil fuel company.—The term 'fossil fuel company' means a person that—

"(A) carries out oil, gas, or coal exploration, development, or production activities;

"(B) processes or refines oil, gas, or coal; or

"(C) transports, or constructs facilities for the transportation of, Russian oil, gas, or coal.

"(4) Person.—The term 'person' means—

"(A) a natural person, corporation, company, business association, partnership, society, trust, or any other nongovernmental entity, organization, or group;

"(B) any governmental entity or instrumentality of a government, including a multilateral development institution (as defined in section 1701(c)(3) of the International Financial Institutions Act (22 U.S.C. 262r(c)(3))); and

"(C) any successor, subunit, parent entity, or subsidiary of, or any entity under common ownership or control with, any entity described in subparagraph (A) or (B)."

Prohibition of the Department of Defense Procurement Related to Entities Identified as Chinese Military Companies Operating in the United States

Pub. L. 118–31, div. A, title VIII, §805, Dec. 22, 2023, 137 Stat. 315, provided that:

"(a) Prohibition on Use or Procurement.—

"(1) In general.—Except as provided under subsection (d), the Secretary may not—

"(A) enter into, renew, or extend a contract for the procurement of goods, services, or technology with an entity described in paragraph (2); or

"(B) enter into, renew, or extend a contract for the procurement of goods or services that include goods or services produced or developed by an entity described in paragraph (2).

"(2) Entities described.—An entity described in this paragraph is—

"(A) an entity that is identified in the annual list published in the Federal Register by the Department of Defense of Chinese military companies operating in the United States pursuant to section 1260H of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283] (10 U.S.C. 113 note); or

"(B) any entity subject to the control of an entity described in subparagraph (A).

"(3) Limitation on applicability.—

"(A) In general.—Nothing in paragraph (1) shall prohibit the Secretary from entering into, renewing, or extending a contract for the procurement of goods, services, or technology to provide a service that connects to the facilities of a third party, including backhaul, roaming, or interconnection arrangements.

"(B) Existing contracts.—Nothing in this section shall permit the Secretary to apply the prohibitions in paragraph (1) to existing contracts for goods, services, or technology, including when such contracts are modified, extended, or renewed, entered into prior to the relevant date described in subsection (b).

"(C) Components.—Paragraph (1) shall not apply with respect to components (as defined in section 105 of title 41, United States Code).

"(4) Rulemaking.—

"(A) Entity prohibition.—Not later than one year after the date of the enactment of this Act [Dec. 22, 2023], the Secretary shall amend the Defense Federal Acquisition Regulation Supplement to implement the prohibitions in paragraph (1)(A) for the Department of Defense.

"(B) Goods and services prohibition.—Not later than 545 days after the date of the enactment of this Act, the Secretary shall amend the Defense Federal Acquisition Regulation Supplement to implement the prohibitions in paragraph (1)(B) for the Department of Defense, including—

"(i) best practices to avoid being subject to the prohibitions described in paragraph (1)(B); and

"(ii) technical support to assist affected businesses, institutions, and organizations as is reasonably necessary for those affected entities to comply with this section.

"(b) Effective Dates.—The prohibition under subsection (a)(1)(A) shall take effect on June 30, 2026, and the prohibition under subsection (a)(1)(B) shall take effect on June 30, 2027.

"(c) Waiver Authority.—

"(1) In general.—The Secretary may waive the requirements under subsection (a) with respect to an entity that requests such a waiver if the entity seeking the waiver—

"(A) provides to the Secretary a compelling justification for the additional time to implement the requirements under such subsection, as determined by the Secretary of Defense; and

"(B) provides to the Secretary a phase-out plan to eliminate goods, services, or technology produced or developed by an entity described in subsection (a)(2) from the systems of the entity.

"(2) Duration.—A waiver granted under paragraph (1) may remain in effect until the date on which the Secretary determines that commercially viable providers exist outside of the People's Republic of China that can and are willing to provide the Department of Defense with quality goods and services in the quantity demanded.

"(3) Delegation.—The Secretary may designate the authority under this section only to—

"(A) the service acquisition executive of the military department (as such terms are defined in section 101(a) of title 10, United States Code) concerned; or

"(B) the official responsible for all acquisition functions of such other element or organization of the Department of Defense concerned.

"(d) Exception.—The President shall not be required to apply or maintain the prohibition under subsection (a) for activities subject to the reporting requirements under title V of the National Security Act of 1947 (50 U.S.C. 3091 et seq.), or to any authorized intelligence activities of the United States.

"(e) Definitions.—In this section:

"(1) Control.—The term 'control' has the meaning given that term in part 800.208 of title 31, Code of Federal Regulations, or any successor regulations.

"(2) Secretary.—The term 'Secretary' means the Secretary of Defense."

Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region

Pub. L. 117–81, div. A, title VIII, §848, Dec. 27, 2021, 135 Stat. 1843, which related to procurement of products mined, produced, or manufactured wholly or in part by forced labor from Xinjiang Uyghur Autonomous Region of the People's Republic of China, was repealed by Pub. L. 117–263, div. A, title VIII, §855(a), Dec. 23, 2022, 136 Stat. 2723. See section 4661 of this title.

Employment Transparency Regarding Individuals Who Perform Work in the People's Republic of China

Pub. L. 117–81, div. A, title VIII, §855, Dec. 27, 2021, 135 Stat. 1850, provided that:

"(a) Disclosure Requirements.—

"(1) Initial disclosures.—The Secretary of Defense shall require each covered entity to disclose to the Secretary of Defense if the entity employs one or more individuals who will perform work in the People's Republic of China on a covered contract when the entity submits a bid or proposal for such covered contract, except that such disclosure shall not be required to the extent that the Secretary determines that such disclosure would not be in the interest of national security.

"(2) Recurring disclosures.—For each of fiscal years 2023 and 2024, the Secretary of Defense shall require each covered entity that is a party to one or more covered contracts in the fiscal year to disclose to the Secretary if the entity employs one or more individuals who perform work in the People's Republic of China on any such contract.

"(3) Matters to be included.—If a covered entity required to make a disclosure under paragraph (1) or (2) employs any individual who will perform work in the People's Republic of China on a covered contract, such disclosure shall include—

"(A) the total number of such individuals who will perform work in the People's Republic of China on the covered contracts funded by the Department of Defense; and

"(B) a description of the physical presence in the People's Republic of China where work on the covered contract will be performed.

"(b) Funding for Covered Entities.—The Secretary of Defense may not award a covered contract to, or renew a covered contract with, a covered entity unless such covered entity has submitted each disclosure such covered entity is required to submit under subsection (a).

"(c) Semi-annual Briefing.—Beginning on January 1, 2023, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] semi-annual briefings that summarize the disclosures received by the Department over the previous 180 days pursuant to this section, and such briefings may be classified.

"(d) Definitions.—In this section:

"(1) Covered contract.—The term 'covered contract' means any Department of Defense contract or subcontract with a value in excess of $5,000,000, excluding contracts for commercial products or services.

"(2) Covered entity.—The term 'covered entity' means any corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity, including any subsidiary thereof, performing work on a covered contract in the People's Republic of China, including by leasing or owning real property used in the performance of the covered contract in the People's Republic of China.

"(e) Effective Date.—This section shall take effect on July 1, 2022."

Prohibition on Procurements From Chinese Military Companies

Pub. L. 109–163, div. A, title XII, §1211, Jan. 6, 2006, 119 Stat. 3461, as amended by Pub. L. 112–81, div. A, title XII, §1243(a), (b), Dec. 31, 2011, 125 Stat. 1645; Pub. L. 114–328, div. A, title XII, §1296, Dec. 23, 2016, 130 Stat. 2562; Pub. L. 117–263, div. A, title VIII, §857(b), Dec. 23, 2022, 136 Stat. 2729, provided that:

"(a) Prohibition.—The Secretary of Defense may not procure goods or services described in subsection (b), through a contract or any subcontract (at any tier) under a contract, from any Communist Chinese military company, any Chinese military company, any Non-SDN Chinese military-industrial complex company, or any other covered company.

"(b) Goods and Services Covered.—

"(1) In general.—For purposes of subsection (a), and except as provided in paragraph (2), the goods and services described in this subsection are goods and services—

"(A) on the munitions list of the International Traffic in Arms Regulations; or

"(B) on the Commerce Control List that—

"(i) are classified in the 600 series; or

"(ii) contain strategic and critical materials, rare earth elements, or energetic materials used to manufacture missiles or munitions.

"(2) Exceptions.—Goods and services described in this subsection do not include goods or services procured—

"(A) in connection with a visit by a vessel or an aircraft of the United States Armed Forces to the People's Republic of China;

"(B) for testing purposes; or

"(C) for purposes of gathering intelligence.

"(c) Waiver Authorized.—The Secretary of Defense may waive the prohibition in subsection (a) if the Secretary determines that such a waiver is necessary for national security purposes and the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report described in subsection (d) not less than 15 days before issuing the waiver under this subsection.

"(d) Report.—The report referred to in subsection (c) is a report that identifies the specific reasons for the waiver issued under subsection (c) and includes recommendations as to what actions may be taken to develop alternative sourcing capabilities in the future.

"(e) Definitions.—In this section:

"(1) The term 'Chinese military company' has the meaning given that term by section 1260H(d)(1) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283; 10 U.S.C. 113 note).

"(2) The term 'Commerce Control List' means the list maintained by the Bureau of Industry and Security and set forth in Supplement No. 1 to part 774 of the Export Administration Regulations.

"(3) The term 'Communist Chinese military company' has the meaning provided that term by section 1237(b)(4) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 [Pub. L. 105–261] (50 U.S.C. 1701 note).

"(4) The term 'Export Administration Regulations' has the meaning given that term in section 1742 of the Export Control Reform Act of 2018 (50 U.S.C. 4801).

"(5) The term 'munitions list of the International Traffic in Arms Regulations' means the United States Munitions List contained in part 121 of subchapter M of title 22 of the Code of Federal Regulations.

"(6) The term 'Non-SDN Chinese military-industrial complex company' means any entity on the Non-SDN Chinese Military-Industrial Complex Companies List—

"(A) established pursuant to Executive Order 13959 (50 U.S.C. 1701 note; relating to addressing the threat from securities investments that finance Communist Chinese military companies), as amended before, on, or after the date of the enactment of the [James M. Inhofe] National Defense Authorization Act for Fiscal Year 2023 [Dec. 23, 2022]; and

"(B) maintained by the Office of Foreign Assets Control of the Department of the Treasury.

"(7) The term 'other covered company' means a company that—

"(A) is owned or controlled by the government of the People's Republic of China; and

"(B) is certified by the Secretary of Defense to the congressional defense committees to be a company that must be covered by this section for national security reasons.

"(8) The term 'strategic and critical materials' means materials designated as strategic and critical under section 3(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98b(a)).

"(f) Effective Date.—With respect to goods and services described in clause (ii) of subparagraph (b)(1)(B), the prohibition shall take effect 180 days after the date on which the Secretary of Defense certifies to the congressional defense committees that a sufficient number of commercially viable providers exist outside of the People's Republic of China that collectively can provide the Department of Defense with satisfactory quality and sufficient quantity of such goods or services as and when needed at United States market prices."

[Pub. L. 112–81, div. A, title XII, §1243(c), Dec. 31, 2011, 125 Stat. 1646, provided that: "The amendments made by this section [amending section 1211 of Pub. L. 109–163, set out above] take effect on the date of the enactment of this Act [Dec. 31, 2011] and apply with respect to contracts and subcontracts of the Department of Defense entered into on or after the date of the enactment of this Act."]

§4651. Expenditure of appropriations: limitation

(a) Money appropriated to the Department of Defense may not be spent under a contract other than a contract for personal services unless that contract provides that—

(1) the United States may, by written notice to the contractor, terminate the right of the contractor to proceed under the contract if the Secretary concerned or his designee finds, after notice and hearing, that the contractor, or his agent or other representative, offered or gave any gratuity, such as entertainment or a gift, to an officer, official, or employee of the United States to obtain a contract or favorable treatment in the awarding, amending, or making of determinations concerning the performance, of a contract; and

(2) if a contract is terminated under clause (1), the United States has the same remedies against the contractor that it would have had if the contractor had breached the contract and, in addition to other damages, is entitled to exemplary damages in an amount at least three, but not more than 10, as determined by the Secretary or his designee, times the cost incurred by the contractor in giving gratuities to the officer, official, or employee concerned.

The existence of facts upon which the Secretary makes findings under clause (1) may be reviewed by any competent court.

(b) This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).

(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520, §2207; amended Pub. L. 104–106, div. A, title VIII, §801, Feb. 10, 1996, 110 Stat. 389; Pub. L. 111–350, §5(b)(5), Jan. 4, 2011, 124 Stat. 3842; renumbered §4651, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2207	5:174d.	June 30, 1954, ch. 432, §719, 68 Stat. 353.

The following substitutions are made: "spent" for "expended"; "United States" for "Government"; "if a contract is terminated under clause (1)" for "that in the event any such contract is so terminated"; and "has . . . that it would have had if" for "shall be entitled . . . to pursue . . . as it could pursue in the event of". The word "official" is inserted for clarity. The words "entered into after June 30, 1954" are omitted as executed.

Editorial Notes

Prior Provisions

A prior section 4651, Aug. 10, 1956, ch. 1041, 70A Stat. 260; Pub. L. 99–145, title XIII, §1301(b(3)(C), Nov. 8, 1985, 99 Stat. 736, related to issuance of arms, tentage, and equipment necessary for proper military training to institutions not maintaining units of the Reserve Officers' Training Corps, prior to repeal by Pub. L. 112–239, div. A, title V, §552(b), Jan. 2, 2013, 126 Stat. 1741.

Amendments

2021—Pub. L. 116–283 renumbered section 2207 of this title as this section.

2011—Subsec. (b). Pub. L. 111–350 substituted "section 134 of title 41" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))".

1996—Pub. L. 104–106 designated existing provisions as subsec. (a) and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4652. Prohibition on use of funds for documenting economic or employment impact of certain acquisition programs

No funds appropriated by the Congress may be obligated or expended to assist any contractor of the Department of Defense in preparing any material, report, lists, or analysis with respect to the actual or projected economic or employment impact in a particular State or congressional district of an acquisition program for which all research, development, testing, and evaluation has not been completed.

(Added Pub. L. 103–355, title VII, §7202(a)(1), Oct. 13, 1994, 108 Stat. 3379, §2247; renumbered §2249, Pub. L. 104–106, div. D, title XLIII, §4321(b)(2)(A), Feb. 10, 1996, 110 Stat. 672; renumbered §4652, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Prior Provisions

A prior section 4652 was renumbered section 7652 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2249 of this title as this section.

1996—Pub. L. 104–106 renumbered section 2247 of this title as section 2249.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355 set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

§4653. Prohibition on use of funds to relieve economic dislocations

(a) In order to help avoid the uneconomic use of Department of Defense funds in the procurement of goods and services, the Congress finds that it is necessary to prohibit the use of such funds for certain purposes.

(b) No funds appropriated to or for the use of the Department of Defense may be used to pay, in connection with any contract awarded by the Department of Defense, a price differential for the purpose of relieving economic dislocations.

(Added Pub. L. 97–86, title IX, §913(a)(1), Dec. 1, 1981, 95 Stat. 1123, §2392; renumbered §4653, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Prior Provisions

A prior section 4653 was renumbered section 7653 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2392 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4654. Prohibition against doing business with certain offerors or contractors

(a)(1) Except as provided in paragraph (2), the Secretary of a military department may not solicit an offer from, award a contract to, extend an existing contract with, or, when approval by the Secretary of the award of a subcontract is required, approve the award of a subcontract to, an offeror or contractor which to the Secretary's knowledge has been debarred or suspended by another Federal agency unless—

(A) in the case of debarment, the debarment of the offeror or contractor by all other agencies has been terminated or the period of time specified for such debarment has expired; and

(B) in the case of a suspension, the period of time specified by all other agencies for the suspension of the offeror or contractor has expired.

(2) Paragraph (1) does not apply in any case in which the Secretary concerned determines that there is a compelling reason to solicit an offer from, award a contract to, extend a contract with, or approve a subcontract with such offeror or contractor.

(b) Whenever the Secretary concerned makes a determination described in subsection (a)(2), he shall, at the time of the determination, transmit a notice to the Administrator of General Services describing the determination. The Administrator of General Services shall maintain each such notice on a publicly accessible website to the maximum extent practicable.

(c) In this section:

(1) The term "debar" means to exclude, pursuant to established administrative procedures, from Government contracting and subcontracting for a specified period of time commensurate with the seriousness of the failure or offense or the inadequacy of performance.

(2) The term "suspend" means to disqualify, pursuant to established administrative procedures, from Government contracting and subcontracting for a temporary period of time because a concern or individual is suspected of engaging in criminal, fraudulent, or seriously improper conduct.

(d) The Secretary of Defense shall prescribe in regulations a requirement that each contractor under contract with the Department of Defense shall require each contractor to whom it awards a contract (in this section referred to as a subcontractor) to disclose to the contractor whether the subcontractor is or is not, as of the time of the award of the subcontract, debarred or suspended by the Federal Government from Government contracting or subcontracting. The requirement shall apply to any subcontractor whose subcontract is in an amount greater than the simplified acquisition threshold (as defined in section 134 of title 41). The requirement shall not apply in the case of a subcontract for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41).

(Added Pub. L. 97–86, title IX, §914(a), Dec. 1, 1981, 95 Stat. 1124, §2393; amended Pub. L. 100–180, div. A, title XII, §1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 101–510, div. A, title VIII, §813, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–190, div. A, title X, §1061(a)(11), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–355, title IV, §4102(e), title VIII, §8105(c), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 111–350, §5(b)(24), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 113–66, div. A, title VIII, §813, Dec. 26, 2013, 127 Stat. 808; Pub. L. 115–232, div. A, title VIII, §836(e)(3), Aug. 13, 2018, 132 Stat. 1869; renumbered §4654, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Prior Provisions

A prior section 4654 was renumbered section 7654 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2393 of this title as this section.

2018—Subsec. (d). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41)" for "commercial items (as defined in section 103 of title 41)".

2013—Subsec. (b). Pub. L. 113–66 substituted "on a publicly accessible website to the maximum extent practicable" for "in a file available for public inspection".

2011—Subsec. (d). Pub. L. 111–350 substituted "section 134 of title 41)" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))" and "section 103 of title 41)" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))".

1994—Subsec. (d). Pub. L. 103–355 substituted "greater than the simplified acquisition threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))." for "above the small purchase amount established in section 2304(g) of this title." in second sentence and inserted at end "The requirement shall not apply in the case of a subcontract for the acquisition of commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))."

1991—Subsec. (d). Pub. L. 102–190 substituted "Federal Government" for "Federal government".

1990—Subsec. (d). Pub. L. 101–510 added subsec. (d).

1987—Subsec. (c). Pub. L. 100–180 inserted "The term" after each par. designation and revised first word in quotes in each par. to make initial letter of such word lowercase.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

§4655. Prohibition of contractors limiting subcontractor sales directly to the United States

(a) Each contract for the purchase of supplies or services made by the Department of Defense shall provide that the contractor will not—

(1) enter into any agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the United States of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or

(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales to the United States described in clause (1).

(b) This section does not prohibit a contractor from asserting rights it otherwise has under law.

(c) This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).

(d)(1) An agreement between the contractor in a contract for the acquisition of commercial products or commercial services and a subcontractor under such contract that restricts sales by such subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the United States in violation of the provision included in such contract pursuant to subsection (a) if the agreement does not result in the United States being treated differently with regard to the restriction than any other prospective purchaser of such commercial products or commercial services from that subcontractor.

(2) In paragraph (1), the terms "commercial product" and "commercial service" have the meanings given those terms in sections 103 and 103a, respectively, of title 41.

(Added Pub. L. 98–525, title XII, §1234(a), Oct. 19, 1984, 98 Stat. 2601, §2402; amended Pub. L. 103–355, title IV, §4102(f), title VIII, §8105(g), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 111–350, §5(b)(25), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(e)(4), Aug. 13, 2018, 132 Stat. 1869; renumbered §4655, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Prior Provisions

A prior section 4655 was renumbered section 7655 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2402 of this title as this section.

2018—Subsec. (d)(1). Pub. L. 115–232, §836(e)(4)(A), substituted "commercial products or commercial services" for "commercial items" in two places.

Subsec. (d)(2). Pub. L. 115–232, §836(e)(4)(B), substituted "the terms 'commercial product' and 'commercial service' have the meanings given those terms in sections 103 and 103a, respectively, of title 41." for "the term 'commercial item' has the meaning given such term in section 103 of title 41."

2011—Subsec. (c). Pub. L. 111–350, §5(b)(25)(A), substituted "section 134 of title 41)" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))".

Subsec. (d)(2). Pub. L. 111–350, §5(b)(25)(B), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

1994—Subsecs. (c), (d). Pub. L. 103–355 added subsecs. (c) and (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date

Pub. L. 98–525, title XII, §1234(c), Oct. 19, 1984, 98 Stat. 2604, provided that: "Section 2402 of title 10, United States Code [now 10 U.S.C. 4655] (as added by subsection (a)), shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984]."

§4656. Prohibition on persons convicted of defense-contract related felonies and related criminal penalty on defense contractors

(a) Prohibition.—(1) An individual who is convicted of fraud or any other felony arising out of a contract with the Department of Defense shall be prohibited from each of the following:

(A) Working in a management or supervisory capacity on any defense contract or any first tier subcontract of a defense contract.

(B) Serving on the board of directors of any defense contractor or any subcontractor awarded a contract directly by a defense contractor.

(C) Serving as a consultant to any defense contractor or any subcontractor awarded a contract directly by a defense contractor.

(D) Being involved in any other way, as determined under regulations prescribed by the Secretary of Defense, with a defense contract or first tier subcontract of a defense contract.

(2) Except as provided in paragraph (3), the prohibition in paragraph (1) shall apply for a period, as determined by the Secretary of Defense, of not less than five years after the date of the conviction.

(3) The prohibition in paragraph (1) may apply with respect to an individual for a period of less than five years if the Secretary determines that the five-year period should be waived in the interests of national security.

(4) The prohibition in paragraph (1) does not apply with respect to the following:

(A) A contract referred to in subparagraph (A), (B), (C), or (D) of such paragraph that is not greater than the simplified acquisition threshold (as defined in section 134 of title 41).

(B) A contract referred to in such subparagraph that is for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41).

(C) A subcontract referred to in such subparagraph that is under a contract described in subparagraph (A) or (B).

(b) Criminal Penalty.—A defense contractor or subcontractor shall be subject to a criminal penalty of not more than $500,000 if such contractor or subcontractor is convicted of knowingly—

(1) employing a person under a prohibition under subsection (a); or

(2) allowing such a person to serve on the board of directors of such contractor or subcontractor.

(c) Single Point of Contact for Information.—(1) The Attorney General shall ensure that a single point of contact is established to enable a defense contractor or subcontractor to promptly obtain information regarding whether a person that the contractor or subcontractor proposes to use for an activity covered by paragraph (1) of subsection (a) is under a prohibition under that subsection.

(2) The procedure for obtaining such information shall be specified in regulations prescribed by the Secretary of Defense under subsection (a).

(Added Pub. L. 99–500, §101(c) [title X, §941(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-161, and Pub. L. 99–591, §101(c) [title X, §941(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-161, §2408; Pub. L. 99–661, div. A, title IX, formerly title IV, §941(a)(1), Nov. 14, 1986, 100 Stat. 3941, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–456, div. A, title VIII, §831(a), Sept. 29, 1988, 102 Stat. 2023; Pub. L. 101–510, div. A, title VIII, §812, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–484, div. A, title VIII, §815(a), Oct. 23, 1992, 106 Stat. 2454; Pub. L. 103–355, title IV, §4102(g), title VIII, §8105(h), Oct. 13, 1994, 108 Stat. 3340, 3393; Pub. L. 104–106, div. A, title X, §1062(e), Feb. 10, 1996, 110 Stat. 444; Pub. L. 111–350, §5(b)(26), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(e)(5), Aug. 13, 2018, 132 Stat. 1870; renumbered §4656, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Prior Provisions

A prior section 4656 was renumbered section 7656 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2408 of this title as this section.

2018—Subsec. (a)(4)(B). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41)" for "commercial items (as defined in section 103 of title 41)".

2011—Subsec. (a)(4)(A). Pub. L. 111–350, §5(b)(26)(A), substituted "section 134 of title 41)" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))".

Subsec. (a)(4)(B). Pub. L. 111–350, §5(b)(26)(B), substituted "section 103 of title 41)" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))".

1996—Subsec. (a)(3). Pub. L. 104–106 struck out at end "If the five-year period is waived, the Secretary shall submit to Congress a report stating the reasons for the waiver."

1994—Subsec. (a)(4). Pub. L. 103–355, §4102(g), added introductory provisions and subpar. (A).

Subsec. (a)(4)(B). Pub. L. 103–355, §8105(h)(1), added subpar. (B).

Subsec. (a)(4)(C). Pub. L. 103–355, §8105(h)(2), inserted "or (B)" before period at end.

Pub. L. 103–355, §4102(g), added subpar. (C).

1992—Subsec. (c). Pub. L. 102–484 added subsec. (c).

1990—Subsec. (a)(1)(A). Pub. L. 101–510, §812(a)(1), inserted before period at end "or any first tier subcontract of a defense contract".

Subsec. (a)(1)(B). Pub. L. 101–510, §812(a)(2), inserted before period at end "or any subcontractor awarded a contract directly by a defense contractor".

Subsec. (a)(1)(C). Pub. L. 101–510, §812(a)(3), inserted before period at end "or any subcontractor awarded a contract directly by a defense contractor".

Subsec. (a)(1)(D). Pub. L. 101–510, §812(a)(4), inserted before period at end "or first tier subcontract of a defense contract".

Subsec. (b). Pub. L. 101–510, §812(b), inserted "or subcontractor" after "contractor" wherever appearing.

1988—Subsec. (a). Pub. L. 100–456 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "A person who is convicted of fraud or any other felony arising out of a contract with the Department of Defense shall be prohibited from working in a management or supervisory capacity on any defense contract, or serving on the board of directors of any defense contractor, for a period, as determined by the Secretary of Defense, of not less than one year from the date of the conviction."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1988 Amendment

Pub. L. 100–456, div. A, title VIII, §831(b), Sept. 29, 1988, 102 Stat. 2023, provided that: "Section 2408(a) of title 10, United States Code [now 10 U.S.C. 4656(a)], as amended by subsection (a), shall apply with respect to individuals convicted after the date of the enactment of this Act [Sept. 29, 1988]."

Effective Date

Pub. L. 99–500, §101(c) [title X, §941(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-162, Pub. L. 99–591, §101(c) [title X, §941(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-162, and Pub. L. 99–661, div. A, title IX, formerly title IV, §941(c), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2408 of title 10, United States Code [now 10 U.S.C. 4656] (as added by subsection (a)(1)), shall apply with respect to employment or service on a board of directors after the date of the enactment of this Act [Oct. 18, 1986]."

§4657. Prohibition on criminal history inquiries by contractors prior to conditional offer

(a) Limitation on Criminal History Inquiries.—

(1) In general.—Except as provided in paragraphs (2) and (3), the head of an agency—

(A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and

(B) shall require as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before such contractor extends a conditional offer to the applicant.

(2) Otherwise required by law.—The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.

(3) Exception for certain positions.—

(A) In general.—The prohibition under paragraph (1) does not apply with respect to—

(i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or

(ii) a position that the Secretary of Defense identifies under the regulations issued under subparagraph (B).

(B) Regulations.—

(i) Issuance.—Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Secretary of Defense, in consultation with the Administrator of General Services, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions.

(ii) Compliance with civil rights laws.—The regulations issued under clause (i) shall—

(I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and

(II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws.

(b) Complaint Procedures.—The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a Department of Defense contractor may submit a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B).

(c) Action for Violations of Prohibition on Criminal History Inquiries.—

(1) First violation.—If the Secretary of Defense determines that a contractor has violated subsection (a)(1)(B), the Secretary shall—

(A) notify the contractor;

(B) provide 30 days after such notification for the contractor to appeal the determination; and

(C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.

(2) Subsequent violations.—If the Secretary of Defense determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), the Secretary shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor's history of violations, including—

(A) providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section;

(B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and

(C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section.

(d) Definitions.—In this section:

(1) Conditional offer.—The term "conditional offer" means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry.

(2) Criminal history record information.—The term "criminal history record information" has the meaning given that term in section 9201 of title 5.

(Added Pub. L. 116–92, div. A, title XI, §1123(b)(1), Dec. 20, 2019, 133 Stat. 1612, §2339; renumbered §4657, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

References in Text

The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019.

The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.

Prior Provisions

A prior section 4657 was renumbered section 7657 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2339 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

Pub. L. 116–92, div. A, title XI, §1123(b)(2), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, §1862(c)(3)(A), Jan. 1, 2021, 134 Stat. 4278, provided that: "Section 4657(a) of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle [2 years after Dec. 20, 2019, see Effective Date note set out under section 9202 of Title 5, Government Organization and Employees]."

Revisions to Federal Acquisition Regulation

Pub. L. 116–92, div. A, title XI, §1123(c), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, §1862(c)(3)(B), Jan. 1, 2021, 134 Stat. 4278, provided that:

"(1) In general.—Not later than 18 months after the date of enactment of this subtitle [Dec. 20, 2019], the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement section 4714 of title 41, United States Code, and section 4657 of title 10, United States Code, as added by this section.

"(2) Consistency with office of personnel management regulations.—The Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation under paragraph (1) to be consistent with the regulations issued by the Director of the Office of Personnel Management under section 1122(b)(1) [5 U.S.C. 9201 note] to the maximum extent practicable. The Council shall include together with such revision an explanation of any substantive modification of the Office of Personnel Management regulations, including an explanation of how such modification will more effectively implement the rights and protections under this section."

§4658. Debarment of persons convicted of fraudulent use of "Made in America" labels

(a) If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a "Made in America" inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in America, the Secretary shall determine, not later than 90 days after determining that the person has been so convicted, whether the person should be debarred from contracting with the Department of Defense.

(b) In this section, the term "debar" has the meaning given that term by section 4654(c) of this title.

(Added Pub. L. 102–484, div. A, title VIII, §834(a)(1), Oct. 23, 1992, 106 Stat. 2461, §2410f; amended Pub. L. 104–106, div. A, title X, §1062(f), title XV, §1503(a)(22), Feb. 10, 1996, 110 Stat. 444, 512; Pub. L. 107–107, div. A, title X, §1048(a)(20), Dec. 28, 2001, 115 Stat. 1223; renumbered §4658 and amended Pub. L. 116–283, div. A, title XVIII, §1862(b), (c)(2), Jan. 1, 2021, 134 Stat. 4277, 4278; Pub. L. 117–81, div. A, title XVII, §1701(b)(20), Dec. 27, 2021, 135 Stat. 2135.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1862(b), renumbered section 2410f of this title as this section.

Subsec. (b). Pub. L. 116–283, §1862(c)(2), as amended by Pub. L. 117–81, §1701(b)(20), substituted "section 4654(c)" for "section 2393(c)".

2001—Subsec. (a). Pub. L. 107–107 inserted ", or another inscription with the same meaning," after "inscription".

1996—Subsec. (a). Pub. L. 104–106, §1062(f), struck out at end "If the Secretary determines that the person should not be debarred, the Secretary shall submit to Congress a report on such determination not later than 30 days after the determination is made."

Subsec. (b). Pub. L. 104–106, §1503(a)(22), substituted "In" for "For purposes of".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

Pub. L. 102–484, div. A, title VIII, §834(b), Oct. 23, 1992, 106 Stat. 2461, provided that: "Section 2410f of title 10, United States Code [now 10 U.S.C. 4658], as added by subsection (a), shall take effect 90 days after the date of the enactment of this Act [Oct. 23, 1992]."

Prohibition of Contracts

Pub. L. 106–398, §1 [[div. A], title VIII, §825(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-220, provided that: "If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a 'Made in America' inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in the United States, the Secretary shall determine, in accordance with section 2410f of title 10, United States Code [now 10 U.S.C. 4658], whether the person should be debarred from contracting with the Department of Defense."

Similar provisions were contained in the following prior authorization acts:

Pub. L. 106–65, div. A, title VIII, §816(b), Oct. 5, 1999, 113 Stat. 712.

Pub. L. 103–160, div. A, title VIII, §849(b), Nov. 30, 1993, 107 Stat. 1725.

§4659. Prohibition on contracting with entities that comply with the secondary Arab boycott of Israel

(a) Policy.—Under section 3(5)(A) ¹ of the Export Administration Act of 1979 (50 U.S.C. 4602(5)(A)), it is the policy of the United States to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States or against any other United States person.

(b) Prohibition.—(1) Consistent with the policy referred to in subsection (a), the Department of Defense may not award a contract for an amount in excess of the simplified acquisition threshold (as defined in section 134 of title 41) to a foreign entity unless that entity certifies to the Secretary of Defense that it does not comply with the secondary Arab boycott of Israel.

(2) In paragraph (1), the term "foreign entity" means a foreign person, a foreign company, or any other foreign entity.

(c) Waiver Authority.—The Secretary of Defense may waive the prohibition in subsection (b) in specific instances when the Secretary determines that the waiver is necessary in the national security interests of the United States.

(d) Exceptions.—Subsection (b) does not apply—

(1) to contracts for consumable supplies, provisions, or services that are intended to be used for the support of United States forces or of allied forces in a foreign country; or

(2) to contracts pertaining to the use of any equipment, technology, data, or services for intelligence or classified purposes by the United States Government in the interests of national security or to the acquisition or lease of any such equipment, technology, data, or services by the United States Government in the interests of national security.

(Added Pub. L. 102–484, div. A, title XIII, §1332(a), Oct. 23, 1992, 106 Stat. 2555, §2410i; amended Pub. L. 111–350, §§4, 5(b)(31), Jan. 4, 2011, 124 Stat. 3841, 3845; Pub. L. 114–328, div. A, title X, §1081(b)(3)(D), Dec. 23, 2016, 130 Stat. 2419; Pub. L. 115–91, div. A, title X, §1051(a)(16), Dec. 12, 2017, 131 Stat. 1561; renumbered §4659, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)

Editorial Notes

References in Text

Section 3(5)(A) of the Export Administration Act of 1979 (50 U.S.C. 4602(5)(A)), referred to in subsec. (a), was repealed by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232.

Amendments

2021—Pub. L. 116–283 renumbered section 2410i of this title as this section.

2017—Subsec. (c). Pub. L. 115–91 struck out at end "Within 15 days after the end of each fiscal year, the Secretary shall submit to Congress a report identifying each contract for which a waiver was granted under this subsection during that fiscal year."

2016—Subsec. (a). Pub. L. 114–328 substituted "(50 U.S.C. 4602(5)(A))" for "(50 U.S.C. App. 2402(5)(A))".

2011—Subsec. (b)(1). Pub. L. 111–350 substituted "simplified acquisition threshold (as defined in section 134 of title 41)" for "small purchase threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

¹ See References in Text note below.

§4660. Prohibition on collection of political information

(a) Prohibition on Requiring Submission of Political Information.—The head of an agency may not require a contractor to submit political information related to the contractor or a subcontractor at any tier, or any partner, officer, director, or employee of the contractor or subcontractor—

(1) as part of a solicitation, request for bid, request for proposal, or any other form of communication designed to solicit offers in connection with the award of a contract for procurement of property or services; or

(2) during the course of contract performance as part of the process associated with modifying a contract or exercising a contract option.

(b) Scope.—The prohibition under this section applies to the procurement of commercial products and commercial services, the procurement of commercial-off-the-shelf-items, and the non-commercial procurement of supplies, property, services, and manufactured items, irrespective of contract vehicle, including contracts, purchase orders, task or deliver orders under indefinite delivery/indefinite quantity contracts, blanket purchase agreements, and basic ordering agreements.

(c) Rule of Construction.—Nothing in this section shall be construed as—

(1) waiving, superseding, restricting, or limiting the application of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.) or preventing Federal regulatory or law enforcement agencies from collecting or receiving information authorized by law; or

(2) precluding the Defense Contract Audit Agency from accessing and reviewing certain information, including political information, for the purpose of identifying unallowable costs and administering cost principles established pursuant to subchapter I of chapter 273 of this title.

(d) Definitions.—In this section:

(1) Contractor.—The term "contractor" includes contractors, bidders, and offerors, and individuals and legal entities who would reasonably be expected to submit offers or bids for Federal Government contracts.

(2) Political information.—The term "political information" means information relating to political spending, including any payment consisting of a contribution, expenditure, independent expenditure, or disbursement for an electioneering communication that is made by the contractor, any of its partners, officers, directors or employees, or any of its affiliates or subsidiaries to a candidate or on behalf of a candidate for election for Federal office, to a political committee, to a political party, to a third party entity with the intention or reasonable expectation that it would use the payment to make independent expenditures or electioneering communications, or that is otherwise made with respect to any election for Federal office, party affiliation, and voting history.

(3) Other terms.—Each of the terms "contribution", "expenditure", "independent expenditure", "candidate", "election", "electioneering communication", and "Federal office" has the meaning given that term in the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.).

(Added Pub. L. 112–81, div. A, title VIII, §823(a), Dec. 31, 2011, 125 Stat. 1502, §2335; amended Pub. L. 113–291, div. A, title X, §1071(f)(17), Dec. 19, 2014, 128 Stat. 3511; Pub. L. 115–91, div. A, title X, §1081(a)(32), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 115–232, div. A, title VIII, §836(c)(10), Aug. 13, 2018, 132 Stat. 1866; renumbered §4660 and amended Pub. L. 116–283, div. A, title XVIII, §§1862(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4277, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(14), Dec. 27, 2021, 135 Stat. 2137.)

Editorial Notes

References in Text

The Federal Election Campaign Act of 1971, referred to in subsecs. (c)(1) and (d)(3), is Pub. L. 92–225, Feb. 7, 1972, 86 Stat. 3, which is classified principally to chapter 301 (§30101 et seq.) of Title 52, Voting and Elections. For complete classification of this Act to the Code, see Tables.

Prior Provisions

A prior section 4681, act Aug. 10, 1956, ch. 1041, 70A Stat. 262; Pub. L. 96–513, title V, §512(19), Dec. 12, 1980, 94 Stat. 2930; Pub. L. 107–217, §3(b)(24), Aug. 21, 2002, 116 Stat. 1297, related to sale to States and certain foreign governments of surplus war material, prior to repeal by Pub. L. 114–328, div. A, title XII, §1253(a)(1)(D), Dec. 23, 2016, 130 Stat. 2532.

Prior sections 4682 to 4690 were renumbered sections 7682 to 7690 of this title, respectively.

Amendments

2021—Pub. L. 116–283, §1862(b), renumbered section 2335 of this title as this section.

Subsec. (c)(2). Pub. L. 117–81 substituted "subchapter I of chapter 273" for "section 2324".

Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2324", which was redesignated as multiple sections.

2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products and commercial services" for "commercial items".

2017—Subsecs. (c)(1), (d)(3). Pub. L. 115–91 substituted "(52 U.S.C. 30101 et seq.)" for "(2 U.S.C. 431 et seq.)".

2014—Subsec. (d)(2). Pub. L. 113–291, §1071(f)(17)(A), redesignated last sentence as par. (3).

Subsec. (d)(3). Pub. L. 113–291, §1071(f)(17)(B)(ii), (iii), substituted "that term" for "the term" and "Federal Election Campaign" for "Federal Campaign".

Pub. L. 113–291, §1071(f)(17)(B)(i), which directed amendment of par. (3) by inserting "Other terms.—" before "each of", was executed by making the insertion before "Each of" to reflect the probable intent of Congress.

Pub. L. 113–291, §1071(f)(17)(A), redesignated last sentence of par. (2) as (3).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

§4661. Prohibition on certain procurements from the Xinjiang Uyghur Autonomous Region

(a) Prohibition on the Availability of Funds for Certain Procurements From XUAR.—None of the funds authorized to be appropriated by a national defense authorization Act or any other Act, or otherwise made available for any fiscal year for the Department of Defense, may be obligated or expended to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR as part of a "poverty alleviation" or "pairing assistance" program.

(b) Definitions.—In this section, the terms "forced labor" and "XUAR" have the meanings given, respectively, in section 2496 of this title.

(Added Pub. L. 117–263, div. A, title VIII, §855(b), Dec. 23, 2022, 136 Stat. 2723.)

Statutory Notes and Related Subsidiaries

Policy Required

Pub. L. 117–263, div. A, title VIII, §855(d), Dec. 23, 2022, 136 Stat. 2723, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall issue a policy to require that an offeror or awardee of a Department of Defense contract shall make a good faith effort to determine that forced labor from XUAR, as described in section 4661 of title 10, United States Code (as amended by subsection (b)), will not be used in the performance of such contract."

§4662. Prohibition on the transfer of certain data on employees of the Department of Defense to third parties

(a) In General.—Each contract entered into by the Department of Defense on or after the date of the enactment of this section shall include a provision prohibiting the contractor and each subcontractor under such contract from selling, licensing, or otherwise transferring covered individually identifiable Department employee data to any individual or entity other than the Federal Government, except to the extent required to perform such contract or a subcontract under such contract and that would be permissible pursuant to statute or guidance from the Director of the Office of Management and Budget.

(b) Waiver.—The Secretary of Defense may waive the requirements of subsection (a) with respect to a sale, licensing, or other transfer of covered individually identifiable Department employee data if the Secretary determines that such waiver is appropriate.

(c) Definitions.—In this section:

(1) The term "covered individually identifiable Department employee data" means individually identifiable Department employee data obtained by—

(A) a contractor pursuant to the performance of a contract described in subsection (a) by such contractor; or

(B) a subcontractor pursuant to the performance of a subcontract under such a contract by such subcontractor.

(2) The term "individually identifiable Department employee data" means information related to an employee of the Department of Defense, including a member of the Armed Forces, that—

(A) identifies such employee; or

(B) which may be used to infer, by either direct or indirect means, the identity of such an employee to whom the information applies.

(Added Pub. L. 118–31, div. A, title VIII, §803, Dec. 22, 2023, 137 Stat. 312.)

Editorial Notes

References in Text

The date of the enactment of this section, referred to in subsec. (a), is the date of enactment of Pub. L. 118–31, which was approved Dec. 22, 2023.

CHAPTER 365—CONTRACTOR WORKFORCE

        

Editorial Notes

Prior Provisions

A prior chapter 365 "CONTRACTOR WORKFORCE", consisting of reserved section 4701, was repealed by Pub. L. 116–283, div. A, title XVIII, §1863(a), Jan. 1, 2021, 134 Stat. 4278.

Another prior chapter 365, consisting of sections 3881 to 3889 relating to retirement for age of certain commissioned officers, some of which had previously been repealed, was repealed in its entirety by Pub. L. 96–513, title II, §216, title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981.

Statutory Notes and Related Subsidiaries

Policies and Procedures for Contractors To Report Gross Violations of Internationally Recognized Human Rights

Pub. L. 116–92, div. A, title VIII, §888, Dec. 20, 2019, 133 Stat. 1536, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall update Department of Defense policy and guidance and the Department of Defense Supplement to the Federal Acquisition Regulation to provide specific guidance to Department of Defense employees and contractors performing a Department of Defense contract that supports United States Armed Forces deployed outside of the United States on monitoring and reporting allegations of gross violations of internationally recognized human rights.

"(b) Report.—Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense, with the concurrence of the Secretary of State, shall submit to the appropriate congressional committees a report that describes—

"(1) the policies and procedures in place to obtain information about possible cases of gross violations of internationally recognized human rights from Department of Defense contractors described in subsection (a), including the methods for tracking cases; and

"(2) the resources needed to investigate reports made pursuant to subsection (a).

"(c) Form of Report.—The report required by subsection (b) shall be submitted in unclassified form, but may include a classified annex.

"(d) Definitions.—In this section:

"(1) Appropriate congressional committees.—the term 'appropriate congressional committees' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(B) the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.

"(2) Gross violations of internationally recognized human rights.—The term 'gross violations of internationally recognized human rights' has the meaning given such term in subsection (d)(1) of section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 2304)."

Prohibition on Contracting With Persons That Have Business Operations With the Maduro Regime

Pub. L. 116–92, div. A, title VIII, §890, Dec. 20, 2019, 133 Stat. 1538, provided that:

"(a) Prohibition.—Except as provided under subsections (c), (d), and (e), the Department of Defense may not enter into a contract for the procurement of goods or services with any person that has business operations with an authority of the Government of Venezuela that is not recognized as the legitimate Government of Venezuela by the United States Government.

"(b) Exceptions.—

"(1) In general.—The prohibition under subsection (a) does not apply to a contract that the Secretary of Defense and the Secretary of State jointly determine—

"(A) is necessary—

"(i) for purposes of providing humanitarian assistance to the people of Venezuela;

"(ii) for purposes of providing disaster relief and other urgent life-saving measures; or

"(iii) to carry out noncombatant evacuations; or

"(B) is vital to the national security interests of the United States.

"(2) Notification requirement.—The Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Foreign Affairs of the House of Representatives, and the Committee on Foreign Relations of the Senate of any contract entered into on the basis of an exception provided for under paragraph (1).

"(c) Office of Foreign Assets Control Licenses.—The prohibition in subsection (a) shall not apply to a person that has a valid license to operate in Venezuela issued by the Office of Foreign Assets Control of the Department of the Treasury.

"(d) American Diplomatic Mission in Venezuela.—The prohibition in subsection (a) shall not apply to contracts related to the operation and maintenance of the United States Government's consular offices and diplomatic posts in Venezuela.

"(e) Definitions.—In this section:

"(1) Business operations.—The term 'business operations' means engaging in commerce in any form, including acquiring, developing, maintaining, owning, selling, possessing, leasing, or operating equipment, facilities, personnel, products, services, personal property, real property, or any other apparatus of business or commerce.

"(2) Government of venezuela.—The term 'Government of Venezuela' includes the government of any political subdivision of Venezuela, and any agency or instrumentality of the Government of Venezuela. For purposes of this paragraph, the term 'agency or instrumentality of the Government of Venezuela' means an agency or instrumentality of a foreign state as defined in section 1603(b) of title 28, United States Code, with each reference in such section to 'a foreign state' deemed to be a reference to 'Venezuela'.

"(3) Person.—The term 'person' means—

"(A) a natural person, corporation, company, business association, partnership, society, trust, or any other nongovernmental entity, organization, or group;

"(B) any governmental entity or instrumentality of a government, including a multilateral development institution (as defined in section 1701(c)(3) of the International Financial Institutions Act (22 U.S.C. 262r(c)(3))); and

"(C) any successor, subunit, parent entity, or subsidiary of, or any entity under common ownership or control with, any entity described in subparagraph (A) or (B).

"(f) Applicability.—This section shall apply with respect to any contract entered into on or after the date of the enactment of this section [Dec. 20, 2019]."

§4701. Contractor employees: protection from reprisal for disclosure of certain information

(a) Prohibition of Reprisals.—(1) An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of the following:

(A) Gross mismanagement of a Department of Defense contract or grant, a gross waste of Department funds, an abuse of authority relating to a Department contract or grant, or a violation of law, rule, or regulation related to a Department contract (including the competition for or negotiation of a contract) or grant.

(B) Gross mismanagement of a National Aeronautics and Space Administration contract or grant, a gross waste of Administration funds, an abuse of authority relating to an Administration contract or grant, or a violation of law, rule, or regulation related to an Administration contract (including the competition for or negotiation of a contract) or grant.

(C) A substantial and specific danger to public health or safety.

(2) The persons and bodies described in this paragraph are the persons and bodies as follows:

(A) A Member of Congress or a representative of a committee of Congress.

(B) An Inspector General.

(C) The Government Accountability Office.

(D) An employee of the Department of Defense or the National Aeronautics and Space Administration, as applicable, responsible for contract oversight or management.

(E) An authorized official of the Department of Justice or other law enforcement agency.

(F) A court or grand jury.

(G) A management official or other employee of the contractor, subcontractor, grantee, subgrantee, or personal services contractor who has the responsibility to investigate, discover, or address misconduct.

(3) For the purposes of paragraph (1)—

(A) an employee who initiates or provides evidence of contractor, subcontractor, grantee, subgrantee, or personal services contractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Department of Defense or National Aeronautics and Space Administration contract or grant shall be deemed to have made a disclosure covered by such paragraph; and

(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of a Department or Administration official, unless the request takes the form of a nondiscretionary directive and is within the authority of the Department or Administration official making the request.

(b) Investigation of Complaints.—(1) A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the Inspector General of the Department of Defense, or the Inspector General of the National Aeronautics and Space Administration in the case of a complaint regarding the National Aeronautics and Space Administration. Unless the Inspector General determines that the complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant, the Inspector General shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned, and the head of the agency.

(2)(A) Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant or submit a report under paragraph (1) within 180 days after receiving the complaint.

(B) If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the person submitting the complaint.

(3) The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is—

(A) made with the consent of the person alleging the reprisal;

(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or

(C) necessary to conduct an investigation of the alleged reprisal.

(4) A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.

(c) Remedy and Enforcement Authority.—(1) Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall take one or more of the following actions:

(A) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to take affirmative action to abate the reprisal.

(B) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.

(C) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency.

(D) Consider disciplinary or corrective action against any official of the Department of Defense.

(2) If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractor, subcontractor, grantee, subgrantee, or personal services contractor to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury. An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.

(3) An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this subsection.

(4) Whenever a person fails to comply with an order issued under paragraph (1), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and reasonable attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency.

(5) Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act to stay the enforcement of the order of the head of an agency, unless a stay is specifically entered by the court.

(6) The legal burdens of proof specified in section 1221(e) of title 5 shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.

(7) The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.

(d) Notification of Employees.—The Secretary of Defense and the Administrator of the National Aeronautics and Space Administration shall ensure that contractors, subcontractors, grantees, subgrantees, or personal services contractors of the Department of Defense and the National Aeronautics and Space Administration, as applicable, inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

(e) Exceptions.—(1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)).

(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor of an element of the intelligence community if such disclosure—

(A) relates to an activity of an element of the intelligence community; or

(B) was discovered during contract, subcontract, grantee, or subgrantee services provided to an element of the intelligence community.

(f) Construction.—Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.

(g) Definitions.—In this section:

(1) The term "agency" means an agency named in section 3063 of this title.

[(2) Repealed. Pub. L. 116–283, div. A, title XVIII, §1863(c)(2), Jan. 1, 2021, 134 Stat. 4278.]

(3) The term "contract" means a contract awarded by the head of an agency.

(4) The term "contractor" means a person awarded a contract with an agency.

(5) The term "Inspector General" means an Inspector General appointed under chapter 4 of title 5 and any Inspector General that receives funding from, or has oversight over contracts or grants awarded for or on behalf of, the Secretary of Defense.

(6) The term "abuse of authority" means the following:

(A) An arbitrary and capricious exercise of authority that is inconsistent with the mission of the Department of Defense or the successful performance of a Department contract or grant.

(B) An arbitrary and capricious exercise of authority that is inconsistent with the mission of the National Aeronautics and Space Administration or the successful performance of an Administration contract or grant.

(7) The term "grantee" means a person awarded a grant with an agency.

(Added Pub. L. 99–500, §101(c) [title X, §942(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-162, and Pub. L. 99–591, §101(c) [title X, §942(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-162, §2409; Pub. L. 99–661, div. A, title IX, formerly title IV, §942(a)(1), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102–25, title VII, §701(k)(1), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102–484, div. A, title X, §1052(30)(A), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title VI, §6005(a), Oct. 13, 1994, 108 Stat. 3364; Pub. L. 104–106, div. D, title XLIII, §4321(a)(10), Feb. 10, 1996, 110 Stat. 671; Pub. L. 110–181, div. A, title VIII, §846, Jan. 28, 2008, 122 Stat. 241; Pub. L. 112–239, div. A, title VIII, §827(a)–(f), Jan. 2, 2013, 126 Stat. 1833–1836; Pub. L. 113–291, div. A, title VIII, §856, title X, §1071(c)(10), Dec. 19, 2014, 128 Stat. 3460, 3509; Pub. L. 114–261, §1(a)(1), Dec. 14, 2016, 130 Stat. 1362; renumbered §4701 and amended Pub. L. 116–283, div. A, title XVIII, §1863(b), (c), Jan. 1, 2021, 134 Stat. 4278; Pub. L. 117–263, div. A, title VIII, §807(a), Dec. 23, 2022, 136 Stat. 2703; Pub. L. 117–286, §4(b)(28), Dec. 27, 2022, 136 Stat. 4346.)

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Amendments

2022—Subsec. (a)(2)(G), (3)(A). Pub. L. 117–263, §807(a)(1)(A), (B), substituted ", subcontractor, grantee, subgrantee, or personal services contractor" for "or subcontractor".

Subsec. (b)(1). Pub. L. 117–263, §807(a)(2), substituted "contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned" for "contractor concerned".

Subsec. (c)(1). Pub. L. 117–263, §807(a)(3)(A)(i), substituted "contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned" for "contractor concerned" in introductory provisions.

Subsec. (c)(1)(A) to (C). Pub. L. 117–263, §807(a)(3)(A)(ii)–(iv), inserted ", subcontractor, grantee, subgrantee, or personal services contractor" after "contractor".

Subsec. (c)(1)(D). Pub. L. 117–263, §807(a)(3)(A)(v), added subpar. (D).

Subsec. (c)(2). Pub. L. 117–263, §807(a)(3)(B), inserted ", subcontractor, grantee, subgrantee, or personal services contractor" after "contractor".

Subsec. (d). Pub. L. 117–263, §807(a)(4), substituted ", subcontractors, grantees, subgrantees, or personal services contractors" for "and subcontractors".

Subsec. (e)(2). Pub. L. 117–263, §807(a)(5)(A), substituted "grantee, subgrantee, or personal services contractor of" for "or grantee of" in introductory provisions.

Subsec. (e)(2)(B). Pub. L. 117–263, §807(a)(5)(B), substituted "grantee, or subgrantee" for "or grantee".

Subsec. (g)(5). Pub. L. 117–286, which directed amendment of section 2409(g)(5) of this title by substituting "chapter 4 of title 5" for "the Inspector General Act of 1978", was executed to subsec. (g)(5) of this section, to reflect the probable intent of Congress and the amendment by Pub. L. 116–283, §1863(b), which had renumbered section 2409 of this title as this section. See 2021 Amendment note below.

Pub. L. 117–263, §807(a)(6), inserted "or grants" after "contracts".

2021—Pub. L. 116–283, §1863(b), renumbered section 2409 of this title as this section.

Subsec. (g)(1). Pub. L. 116–283, §1863(c)(1), substituted "section 3063" for "section 2303".

Subsec. (g)(2). Pub. L. 116–283, §1863(c)(2), struck out par. (2) which defined "head of an agency".

2016—Subsec. (a)(1). Pub. L. 114–261 inserted "or personal services contractor" after "subgrantee" in introductory provisions.

2014—Subsec. (a)(1). Pub. L. 113–291, §856(a), substituted ", subcontractor, grantee, or subgrantee" for "or subcontractor" in introductory provisions.

Subsec. (e)(1). Pub. L. 113–291, §1071(c)(10), substituted "(50 U.S.C. 3003(4))" for "(50 U.S.C. 401a(4))".

Subsec. (g)(4). Pub. L. 113–291, §856(b)(1), struck out "or a grant" after "contract".

Subsec. (g)(7). Pub. L. 113–291, §856(b)(2), added par. (7).

2013—Subsec. (a). Pub. L. 112–239, §827(a)(1), designated existing provisions as par. (1).

Subsec. (a)(1). Pub. L. 112–239, §827(a)(2), inserted "or subcontractor" after "employee of a contractor", substituted "a person or body described in paragraph (2)" for "a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management, or an authorized official of an agency or the Department of Justice" and "evidence of the following:" for "evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant.", and added subpars. (A) to (C).

Subsec. (a)(2), (3). Pub. L. 112–239, §827(a)(3), added pars. (2) and (3).

Subsec. (b)(1). Pub. L. 112–239, §827(b)(1), inserted "fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant," after "is frivolous,".

Subsec. (b)(2)(A). Pub. L. 112–239, §827(b)(2)(A), inserted ", fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant" after "is frivolous".

Subsec. (b)(2)(B). Pub. L. 112–239, §827(b)(2)(B), inserted ", up to 180 days," after "such additional period of time".

Subsec. (b)(3), (4). Pub. L. 112–239, §827(b)(3), added pars. (3) and (4).

Subsec. (c)(1)(B). Pub. L. 112–239, §827(c)(1), substituted "compensatory damages (including back pay)" for "the compensation (including back pay)".

Subsec. (c)(2). Pub. L. 112–239, §827(c)(2), inserted at end "An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted."

Subsec. (c)(4). Pub. L. 112–239, §827(c)(3), substituted ", compensatory and exemplary damages, and reasonable attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency." for "and compensatory and exemplary damages."

Subsec. (c)(5). Pub. L. 112–239, §827(c)(4), inserted at end "Filing such an appeal shall not act to stay the enforcement of the order of the head of an agency, unless a stay is specifically entered by the court."

Subsec. (c)(6), (7). Pub. L. 112–239, §827(c)(5), added pars. (6) and (7).

Subsec. (d). Pub. L. 112–239, §827(d)(2), added subsec. (d). Former subsec. (d) redesignated (f).

Subsec. (e). Pub. L. 112–239, §827(e), added subsec. (e). Former subsec. (e) redesignated (g).

Subsecs. (f), (g). Pub. L. 112–239, §827(d)(1), redesignated subsecs. (d) and (e) as (f) and (g), respectively.

Subsec. (g)(6). Pub. L. 112–239, §827(f), added par. (6).

2008—Subsec. (a). Pub. L. 110–181, §846(a), substituted "disclosing to a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management," for "disclosing to a Member of Congress" and "information that the employee reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant" for "information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract)".

Subsec. (b). Pub. L. 110–181, §846(b), designated existing provisions as par. (1), substituted "the Department of Defense, or the Inspector General of the National Aeronautics and Space Administration in the case of a complaint regarding the National Aeronautics and Space Administration" for "an agency", and added par. (2).

Subsec. (c)(1). Pub. L. 110–181, §846(c)(1), in introductory provisions, substituted "Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall" for "If the head of the agency determines that a contractor has subjected a person to a reprisal prohibited by subsection (a), the head of the agency may".

Subsec. (c)(2) to (5). Pub. L. 110–181, §846(c)(2), (3), added pars. (2) and (3) and redesignated former pars. (2) and (3) as (4) and (5), respectively.

Subsec. (e)(4). Pub. L. 110–181, §846(d)(1), inserted "or a grant" after "a contract".

Subsec. (e)(5). Pub. L. 110–181, §846(d)(2), inserted "and any Inspector General that receives funding from, or has oversight over contracts awarded for or on behalf of, the Secretary of Defense" before period at end.

1996—Pub. L. 104–106 made technical correction to Pub. L. 103–355, §6005(a). See 1994 Amendment note below.

1994—Pub. L. 103–355, §6005(a), as amended by Pub. L. 104–106, amended section generally. Prior to amendment, subsec. (a) related to prohibition of reprisals, subsec. (b) to investigation of complaints, subsec. (c) to construction of section, and subsec. (d) to coordination of section with former section 2409a of this title.

1992—Subsec. (d). Pub. L. 102–484 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "Effective Date.—This section shall not be in effect during the period when section 2409a of this title is in effect."

1991—Subsec. (d). Pub. L. 102–25 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title VIII, §827(i), Jan. 2, 2013, 126 Stat. 1836, provided that:

"(1) In general.—The amendments made by this section [amending this section and former section 2324 of this title] shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 2, 2013], and shall apply to—

"(A) all contracts awarded on or after such date;

"(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and

"(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.

"(2) Revision of supplements to the far.—Not later than 180 days after the date of the enactment of this Act, the Department of Defense Supplement to the Federal Acquisition Regulation and the National Aeronautics and Space Administration Supplement to the Federal Acquisition Regulation shall each be revised to implement the requirements arising under the amendments made by this section.

"(3) Inclusion of contract clause in contracts awarded before effective date.—At the time of any major modification to a contract that was awarded before the date that is 180 days after the date of the enactment of this Act, the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section to the contract."

Effective Date of 1996 Amendment

Pub. L. 104–106, div. D, title XLIII, §4321(a), Feb. 10, 1996, 110 Stat. 671, provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1992 Amendment

Pub. L. 102–484, div. A, title X, §1052(30)(B), Oct. 23, 1992, 106 Stat. 2501, provided that: "The amendment made by subparagraph (A) [amending this section] shall take effect as if enacted immediately following the enactment of Public Law 102–25 (105 Stat. 75)."

Effective Date

Pub. L. 99–500, §101(c) [title X, §942(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-162, Pub. L. 99–591, §101(c) [title X, §942(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-162, and Pub. L. 99–661, div. A, title IX, formerly title IV, §942(b), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2409 of title 10, United States Code [now 10 U.S.C. 4701] (as added by subsection (a)(1)), shall apply with respect to any reprisal action taken on or after the date of the enactment of this Act [Oct. 18, 1986]."

Construction

Pub. L. 112–239, div. A, title VIII, §827(h), Jan. 2, 2013, 126 Stat. 1836, provided that: "Nothing in this section, or the amendments made by this section [amending this section and section 2324 of this title and enacting provisions set out as a note under this section], shall be construed to provide any rights to disclose classified information not otherwise provided by law."

Prohibition on Awarding of Contracts to Contractors That Require Nondisclosure Agreements Relating to Waste, Fraud, or Abuse

Pub. L. 116–283, div. A, title VIII, §883, Jan. 1, 2021, 134 Stat. 3790, provided that:

"(a) In General.—The Secretary of Defense may not award a contract for the procurement of goods or services to a contractor unless the contractor represents that—

"(1) it does not require its employees to sign internal confidentiality agreements or statements that would prohibit or otherwise restrict such employees from lawfully reporting waste, fraud, or abuse related to the performance of a Department of Defense contract to a designated investigative or law enforcement representative of the Department of Defense authorized to receive such information; and

"(2) it will inform its employees of the limitations on confidentiality agreements and other statements described in paragraph (1).

"(b) Reliance on Representation.—A contracting officer of the Department of Defense may rely on the representation of a contractor as to the requirements described under subsection (a) in awarding a contract unless the officer has reason to question the accuracy of the representation."

Inclusion of Contract Clause in Contracts Awarded Before Effective Date

Pub. L. 114–261, §1(c), Dec. 14, 2016, 130 Stat. 1363, provided that: "At the time of any major modification to a contract that was awarded before the date of the enactment of this Act [Dec. 14, 2016], the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section [amending this section, section 2324 of this title, and sections 4304, 4310, and 4712 of Title 41, Public Contracts] and section 827 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1833) [amending this section and section 2324 of this title]."

Information for Department of Defense Contractor Employees on Their Whistleblower Rights

Pub. L. 110–417, [div. A], title VIII, §842, Oct. 14, 2008, 122 Stat. 4539, provided that:

"(a) In General.—The Secretary of Defense shall ensure that contractors of the Department of Defense inform their employees in writing of employee whistleblower rights and protections under section 2409 of title 10, United States Code [now 10 U.S.C. 4701], as implemented by subpart 3.9 of part I of title 48, Code of Federal Regulations.

"(b) Contractor Defined.—In this section, the term 'contractor' has the meaning given that term in section 2409(e)(4) of title 10, United States Code [now 10 U.S.C. 4701(g)(4)]."

§4702. Incentives and consideration for qualified training programs

(a) Incentives.—The Secretary of Defense shall develop workforce development investment incentives for a contractor that implements a qualified training program to develop the workforce of the contractor in a manner consistent with the needs of the Department of Defense.

(b) Consideration of Qualified Training Programs.—The Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that the system used by the Federal Government to monitor or record contractor past performance includes an analysis of the availability, quality, and effectiveness of a qualified training program of an offeror as part of the past performance rating of such offeror.

(c) Qualified Training Program Defined.—The term "qualified training program" means any of the following:

(1) A program eligible to receive funds under the Workforce Innovation and Opportunity Act (29 U.S.C. 3101 et seq.).

(2) A program eligible to receive funds under the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.).

(3) A program registered under the Act of August 16, 1937 (commonly known as the "National Apprenticeship Act"; 50 Stat. 664; chapter 663; 29 U.S.C. 50 et seq.).

(4) Any other program determined to be a qualified training program for purposes of this section, and that meets the workforce needs of the Department of Defense, as determined by the Secretary of Defense.

(Added Pub. L. 116–92, div. A, title VIII, §864(a), Dec. 20, 2019, 133 Stat. 1522, §2409a; renumbered §4702 and amended Pub. L. 116–283, div. A, title X, §1081(a)(40), title XVIII, §1863(b), Jan. 1, 2021, 134 Stat. 3873, 4278.)

Editorial Notes

References in Text

The Workforce Innovation and Opportunity Act, referred to in subsec. (c)(1), is Pub. L. 113–128, July 22, 2014, 128 Stat. 1425, which enacted chapter 32 (§3101 et seq.) of Title 29, Labor, repealed chapter 30 (§2801 et seq.) of Title 29 and chapter 73 (§9201 et seq.) of Title 20, Education, and made amendments to numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 3101 of Title 29 and Tables.

The Carl D. Perkins Career and Technical Education Act of 2006, referred to in subsec. (c)(2), is Pub. L. 88–210, Dec. 18, 1963, 77 Stat. 403, as amended generally by Pub. L. 109–270, §1(b), Aug. 12, 2006, 120 Stat. 683, which is classified generally to chapter 44 (§2301 et seq.) of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 2301 of Title 20 and Tables.

The Act of August 16, 1937, referred to in subsec. (c)(3), is act Aug. 16, 1937, ch. 663, 50 Stat. 664, popularly known as the National Apprenticeship Act, which is classified generally to chapter 4C (§50 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 50 of Title 29 and Tables.

Amendments

2021—Pub. L. 116–283 renumbered section 2409a of this title as this section.

Subsec. (c)(3). Pub. L. 116–283, §1081(a)(40), substituted "50 Stat. 664;" for "Stat. 664,".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1863(b) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4703. Displaced contractor employees: assistance to obtain certification and employment as teachers or employment as teachers' aides

(a) Assistance Program.—The Secretary of Defense may enter into a cooperative agreement with a defense contractor in order—

(1) to assist an eligible scientist or engineer employed by the contractor whose employment is terminated to obtain—

(A) certification or licensure as an elementary or secondary school teacher; or

(B) the credentials necessary to serve as a teacher's aide; and

(2) to facilitate the employment of the scientist or engineer by a local educational agency that—

(A) is receiving a grant under title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) as a result of having within its jurisdiction concentrations of children from low-income families; and

(B) is also experiencing a shortage of teachers or teachers' aides.

(b) Eligible Defense Contractors.—(1) The Secretary of Defense shall establish an application and selection process for the participation of defense contractors in a cooperative agreement authorized under subsection (a).

(2) The Secretary shall determine which defense contractors are eligible to participate in the placement program on the basis of applications submitted under subsection (c). The Secretary shall limit participation to those defense contractors or subcontractors that—

(A) produce goods or services for the Department of Defense pursuant to a defense contract or operate nuclear weapons manufacturing facilities for the Department of Energy; and

(B) have recently reduced operations, or are likely to reduce operations, due to the completion or termination of a defense contract or program or by reductions in defense spending.

(3) The Secretary shall give special consideration to defense contractors who are located in areas that have been hit particularly hard by reductions in defense spending.

(c) Defense Contractor Applications.—(1) A defense contractor desiring to enter into a cooperative agreement with the Secretary of Defense under subsection (a) shall submit an application to the Secretary containing the following:

(A) Evidence that the contractor has been, or is expected to be, adversely affected by the completion or termination of a defense contract or program or by reductions in defense spending.

(B) An explanation that scientists and engineers employed by the contractor have been terminated, laid off, or retired, or are likely to be terminated, laid off, or retired, as a result of the completion or termination of a defense contract or program or reductions in defense spending.

(C) A description of programs implemented or proposed by the contractor to assist these scientists and engineers.

(D) A commitment to help fund the costs associated with the placement program by paying 50 percent of the stipend provided under subsection (g) to an employee or former employee of the contractor selected to receive assistance under this section.

(2) Once a cooperative agreement is entered into under subsection (a) between the Secretary and the defense contractor, the contractor shall publicize the program and distribute applications to prospective participants, and assist the prospective participants with the State screening process.

(d) Eligible Scientists and Engineers.—An individual shall be eligible for selection by the Secretary of Defense to receive assistance under this section if the individual—

(1) is employed or has been employed for not less than five years as a scientist or engineer with a private defense contractor that has entered into an agreement under subsection (a);

(2) has received—

(A) in the case of an individual applying for assistance for placement as an elementary or secondary school teacher, a baccalaureate or advanced degree from an accredited institution of higher education; or

(B) in the case of an individual applying for assistance for placement as a teacher's aide in an elementary or secondary school, an associate, baccalaureate, or advanced degree from an accredited institution of higher education or a junior or community college; and

(3) has been terminated or laid off (or received notice of termination or lay off) as a result of the completion or termination of a defense contract or program or reductions in defense spending; and

(4) satisfies such other criteria for selection as the Secretary may prescribe.

(e) Selection of Participants.—(1) In selecting participants to receive assistance for placement as elementary or secondary school teachers, the Secretary shall give priority to individuals who—

(A) have educational, military, or employment experience in science, mathematics, or engineering and agree to seek employment as science, mathematics, or engineering teachers in elementary or secondary schools; or

(B) have educational, military, or employment experience in another subject area identified by the Secretary, in consultation with the Secretary of Education, as important for national educational objectives and agree to seek employment in that subject area in elementary or secondary schools.

(2) The Secretary may not select an individual under this section unless the Secretary has sufficient appropriations to carry out this section available at the time of the selection to satisfy the obligations to be incurred by the United States under this section with respect to that individual.

(f) Agreement.—An individual selected under this section shall be required to enter into an agreement with the Secretary in which the participant agrees—

(1) to obtain, within such time as the Secretary may require, certification or licensure as an elementary or secondary school teacher or the necessary credentials to serve as a teacher's aide in an elementary or secondary school; and

(2) to accept—

(A) in the case of an individual selected for assistance for placement as a teacher, an offer of full-time employment as an elementary or secondary school teacher for not less than two school years with a local educational agency identified under section 1151(b)(2) of this title, as in effect on October 4, 1999, to begin the school year after obtaining that certification or licensure; or

(B) in the case of an individual selected for assistance for placement as a teacher's aide, an offer of full-time employment as a teacher's aide in an elementary or secondary school for not less than two school years with a local educational agency identified under section 1151(b)(3) of this title, as in effect on October 4, 1999, to begin the school year after obtaining the necessary credentials.

(g) Stipend for Participants.—(1) The Secretary of Defense shall pay to each participant in the placement program a stipend in an amount equal to the lesser of—

(A) $5,000; or

(B) the total costs of the type described in paragraphs (1), (2), (3), (8), and (9) of section 472 of the Higher Education Act of 1965 (20 U.S.C. 1087ll) incurred by the participant while obtaining teacher certification or licensure or the necessary credentials to serve as a teacher's aide and employment as an elementary or secondary school teacher or teacher aide.

(2) A stipend provided under this section shall be taken into account in determining the eligibility of the participant for Federal student financial assistance provided under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.).

(h) Placement of Participants as Teachers and Teachers' Aides.—Subsections (h) through (k) of section 1151 of this title, as in effect on October 4, 1999, shall apply with respect to the placement as teachers and teachers' aides of individuals selected under this section.

(Added Pub. L. 102–484, div. D, title XLIV, §4443(a), Oct. 23, 1992, 106 Stat. 2732, §2410c; renumbered §2410j and amended Pub. L. 103–35, title II, §201(b)(1)(A), (g)(6), May 31, 1993, 107 Stat. 97, 100; Pub. L. 103–160, div. A, title XIII, §1331(c)(3), Nov. 30, 1993, 107 Stat. 1792; Pub. L. 103–382, title III, §391(b)(5), Oct. 20, 1994, 108 Stat. 4022; Pub. L. 104–106, div. A, title XV, §1503(a)(23), Feb. 10, 1996, 110 Stat. 512; Pub. L. 104–201, div. A, title V, §576(c), Sept. 23, 1996, 110 Stat. 2535; Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(14)], Oct. 30, 2000, 114 Stat. 1654, 1654A-291; renumbered §4703, Pub. L. 116–283, div. A, title XVIII, §1863(b), Jan. 1, 2021, 134 Stat. 4278.)

Editorial Notes

References in Text

The Elementary and Secondary Education Act of 1965, referred to in subsec. (a)(2)(A), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27. Title I of the Act is classified generally to subchapter I (§6301 et seq.) of chapter 70 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of Title 20 and Tables.

Section 1151 of this title, referred to in subsecs. (f)(2)(A), (B) and (h), was repealed by Pub. L. 106–65, div. A, title XVII, §1707(a)(1), Oct. 5, 1999, 113 Stat. 823, and a new section 1151 of this title was subsequently added by Pub. L. 109–364, §561(a).

The Higher Education Act of 1965, referred to in subsec. (g)(2), is Pub. L. 89–329, Nov. 8, 1965, 79 Stat. 1219. Title IV of the Act is classified generally to subchapter IV (§1070 et seq.) of chapter 28 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 20 and Tables.

Amendments

2021—Pub. L. 116–283 renumbered section 2410j of this title as this section.

2000—Subsec. (f)(2). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(14)(A)], inserted "as in effect on October 4, 1999," after "of this title," in subpars. (A) and (B).

Subsec. (h). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(14)(B)], inserted ", as in effect on October 4, 1999," after "of this title".

1996—Subsec. (a)(2)(A). Pub. L. 104–106 substituted "6301" for "2701".

Subsec. (f)(2)(A), (B). Pub. L. 104–201 substituted "two school years" for "five school years".

1994—Subsec. (a)(2)(A). Pub. L. 103–382 struck out "chapter 1 of" after "grant under".

1993—Pub. L. 103–35, §201(b)(1)(A), renumbered section 2410c of this title as section 2410j.

Subsec. (f)(2)(A), (B). Pub. L. 103–160 substituted "five school years" for "two school years".

Subsec. (f)(2)(B). Pub. L. 103–35, §201(g)(6), substituted "aide" for "aid" after "for placement as a teacher's".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–160 not applicable with respect to persons selected by Secretary of Defense before Nov. 30, 1993, to participate in teacher and teacher's aide placement programs established pursuant to sections 1598 and 4703 of this title and former section 1151 of this title or agreements entered into by Secretary before such date with local educational agencies under such sections, see section 1331(h) of Pub. L. 103–160, set out as a note under section 1598 of this title.

Savings Provision

Amendments by section 576 of Pub. L. 104–201 not to affect obligations under agreements entered into in accordance with section 1598 or 4703 of this title or former section 1151 of this title before Sept. 23, 1996, see section 576(d) of Pub. L. 104–201, set out as a note under section 1598 of this title.

§4704. Defense contractors: listing of suitable employment openings with local employment service office

(a) Regulations.—The Secretary of Defense shall promulgate regulations containing the requirement described in subsection (b) and such other provisions as the Secretary considers necessary to administer such requirement. Such regulations shall require that each contract described in subsection (c) shall contain a clause requiring the contractor to comply with such regulations.

(b) Requirement.—The regulations promulgated under this section shall require each contractor carrying out a contract described in subsection (c) to list immediately with the appropriate local employment service office, and where appropriate the Interstate Job Bank (established by the United States Employment Service), all of its suitable employment openings under such contract.

(c) Covered Contracts.—The regulations promulgated under this section shall apply to any contract entered into with the Department of Defense in an amount of $500,000 or more.

(Added Pub. L. 102–484, div. D, title XLIV, §4470(a)(1), Oct. 23, 1992, 106 Stat. 2753, §2410d; renumbered §2410k and amended Pub. L. 103–35, title II, §§201(b)(1)(A), 202(a)(18)(A), May 31, 1993, 107 Stat. 97, 102; renumbered §4704, Pub. L. 116–283, div. A, title XVIII, §1863(b), Jan. 1, 2021, 134 Stat. 4278.)

Editorial Notes

Prior Provisions

A prior section 4711, act Aug. 10, 1956, ch. 1041, 70A Stat. 263, related to inquests, prior to repeal by Pub. L. 106–65, div. A, title VII, §721(b), Oct. 5, 1999, 113 Stat. 694.

A prior section 4712 was renumbered section 7712 of this title.

A prior section 4713, acts Aug. 10, 1956, ch. 1041, 70A Stat. 265; Dec. 12, 1980, Pub. L. 96–513, title V, §512(21)(A), (B), 94 Stat. 2930; Nov. 8, 1985, Pub. L. 99–145, title XIII, §1301(b)(4)(B), 99 Stat. 736; Nov. 29, 1989, Pub. L. 101–189, div. A, title XVI, §1621(a)(1), 103 Stat. 1602, related to disposition of effects of deceased persons by Soldiers' and Airmen's Home, prior to repeal by Pub. L. 101–510, div. A, title XV, §§1533(a)(7)(A), 1541, Nov. 5, 1990, 104 Stat. 1734, 1736, effective one year after Nov. 5, 1990.

Prior sections 4714 and 4721 to 4727 were renumbered sections 7714 and 7721 to 7727 of this title, respectively.

A prior section 4741, act Aug. 10, 1956, ch. 1041, 70A Stat. 266, related to control and supervision of transportation of members, munitions of war, equipment, military property, and stores of the Army throughout the United States, prior to repeal by Pub. L. 108–375, div. A, title X, §1072(c), Oct. 28, 2004, 118 Stat. 2058.

A prior section 4742 was renumbered section 2644 of this title.

A prior section 4743, act Aug. 10, 1956, ch. 1041, 70A Stat. 266, related to use of transportation by officers of the Army, prior to repeal by Pub. L. 108–375, div. A, title X, §1072(c), Oct. 28, 2004, 118 Stat. 2058.

Prior sections 4744 to 4747 were renumbered sections 2648 to 2651 of this title, respectively.

A prior section 4748, act Aug. 10, 1956, ch. 1041, 70A Stat. 268, related to transportation of motor vehicles for members on permanent change of station, prior to repeal by Pub. L. 87–651, title I, §119(1), Sept. 7, 1962, 76 Stat. 513.

A prior section 4749 was renumbered section 7749 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2410k of this title as this section.

1993—Pub. L. 103–35, §201(b)(1)(A), renumbered section 2410d of this title as section 2410k.

Pub. L. 103–35, §202(a)(18)(A), made technical amendment to directory language of Pub. L. 102–484, which enacted this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 1993 Amendment

Amendment by section 202(a)(18)(A) of Pub. L. 103–35 applicable as if included in the enactment of Pub. L. 102–484, see section 202(b) of Pub. L. 103–35, set out as a note under section 155 of this title.

Effective Date

Pub. L. 102–484, div. D, title XLIV, §4470(b), Oct. 23, 1992, 106 Stat. 2753, provided that: "Section 2410d of title 10, United States Code [now 10 U.S.C. 4704], as added by subsection (a), shall apply with respect to contracts entered into beginning 120 days after the date of the enactment of this Act [Oct. 23, 1992]."

CHAPTER 367—OTHER ADMINISTRATIVE MATTERS

        

Editorial Notes

Prior Provisions

A prior chapter 367 "OTHER ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS", consisting of reserved section 4751, was repealed by Pub. L. 116–283, div. A, title XVIII, §1864(a), Jan. 1, 2021, 134 Stat. 4279.

Another prior chapter 367 was renumbered chapter 741 of this title.

Statutory Notes and Related Subsidiaries

Pilot Program on Enhancing Information Sharing for Security of Supply Chain

Pub. L. 115–91, div. A, title XVI, §1696, Dec. 12, 2017, 131 Stat. 1793, provided that:

"(a) Establishment.—Not later than June 1, 2019, the Secretary of Defense shall establish a pilot program to enhance information sharing with cleared defense contractors to ensure all source information is appropriately, singularly, and exclusively shared for the purpose of ensuring the security or integrity of the supply chain of covered programs.

"(b) Selection.—The Secretary shall select not more than 10 acquisition or sustainment programs of the Department of Defense to participate in the pilot program under subsection (a), of which—

"(1) not fewer than one program shall be related to nuclear weapons;

"(2) not fewer than one program shall be related to nuclear command, control, and communications;

"(3) not fewer than one program shall be related to continuity of government;

"(4) not fewer than one program shall be related to ballistic missile defense;

"(5) not fewer than one program shall be related to other command and control systems; and

"(6) not fewer than one program shall be related to space systems.

"(c) Report.—Not later than March 1, 2018, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that includes—

"(1) details on how the Secretary will establish the pilot program under subsection (a) to ensure all source information is appropriately, singularly, and exclusively shared for the purpose of ensuring the security or integrity of the supply chain of covered programs;

"(2) details of any personnel, funding, or statutory constraints in carrying out the pilot program; and

"(3) the identification of any legislative action or administrative action required to provide the Secretary with specific additional authorities required to fully implement the pilot program.

"(d) Cleared Defense Contractors Defined.—In this section, the term 'cleared defense contractors' means contractors of the Department of Defense who have a security clearance, including contractor facilities that have a security clearance."

Establishment of Panel on Department of Defense and AbilityOne Contracting Oversight, Accountability, and Integrity; Defense Acquisition University Training

Pub. L. 114–328, div. A, title VIII, §898, Dec. 23, 2016, 130 Stat. 2327, as amended by Pub. L. 116–92, div. A, title IX, §902(32), Dec. 20, 2019, 133 Stat. 1546, provided that:

"(a) Establishment of Panel on Department of Defense and AbilityOne Contracting Oversight, Accountability, and Integrity.—

"(1) In general.—The Secretary of Defense shall establish a panel to be known as the 'Panel on Department of Defense and AbilityOne Contracting Oversight, Accountability, and Integrity' (hereafter in this section referred to as the 'Panel'). The Panel shall be supported by the Defense Acquisition University, established under section 1746 of title 10, United States Code, and the National Defense University, including administrative support.

"(2) Composition.—The Panel shall be composed of the following:

"(A) A representative of the Under Secretary of Defense for Acquisition and Sustainment, who shall be the chairman of the Panel.

"(B) A representative from the AbilityOne Commission.

"(C) A representative of the service acquisition executive of each military department and Defense Agency (as such terms are defined, respectively, in section 101 of title 10, United States Code).

"(D) A representative of the Under Secretary of Defense (Comptroller).

"(E) A representative of the Inspector General of the Department of Defense and the AbilityOne Commission.

"(F) A representative from each of the Army Audit Agency, the Navy Audit Service, the Air Force Audit Agency, and the Defense Contract Audit Agency.

"(G) The President of the Defense Acquisition University, or a designated representative.

"(H) One or more subject matter experts on veterans employment from a veterans service organization.

"(I) A representative of the Commission Directorate of Veteran Employment of the AbilityOne Commission whose duties include maximizing opportunities to employ significantly disabled veterans in accordance with the regulations of the AbilityOne Commission.

"(J) One or more representatives from the Department of Justice who are subject matter experts on compliance with disability rights laws applicable to contracts of the Department of Defense and the AbilityOne Commission.

"(K) One or more representatives from the Department of Justice who are subject matter experts on Department of Defense contracts, Federal Prison Industries, and the requirements of the Javits-Wagner-O'Day Act [see 41 U.S.C. 8501 et seq.].

"(L) Such other representatives as may be determined appropriate by the Under Secretary of Defense for Acquisition and Sustainment.

"(b) Meetings.—The Panel shall meet as determined necessary by the chairman of the Panel, but not less often than once every three months.

"(c) Duties.—The Panel shall—

"(1) review the status of and progress relating to the implementation of the recommendations of report number DODIG–2016–097 of the Inspector General of the Department of Defense titled 'DoD Generally Provided Effective Oversight of AbilityOne Contracts', published on June 17, 2016;

"(2) recommend actions the Department of Defense and the AbilityOne Commission may take to eliminate waste, fraud, and abuse with respect to contracts of the Department of Defense and the AbilityOne Commission;

"(3) recommend actions the Department of Defense and the AbilityOne Commission may take to ensure opportunities for the employment of significantly disabled veterans and the blind and other severely disabled individuals;

"(4) recommend changes to law, regulations, and policy that the Panel determines necessary to eliminate vulnerability to waste, fraud, and abuse with respect to the performance of contracts of the Department of Defense;

"(5) recommend criteria for veterans with disabilities to be eligible for employment opportunities through the programs of the AbilityOne Commission that considers the definitions of disability used by the Secretary of Veterans Affairs and the AbilityOne Commission;

"(6) recommend ways the Department of Defense and the AbilityOne Commission may explore opportunities for competition among qualified nonprofit agencies or central nonprofit agencies and ensure an equitable selection and allocation of work to qualified nonprofit agencies;

"(7) recommend changes to business practices, information systems, and training necessary to ensure that—

"(A) the AbilityOne Commission complies with regulatory requirements related to the establishment and maintenence of the procurement list established pursuant to section 8503 of title 41, United States Code; and

"(B) the Department of Defense complies with the statutory and regulatory requirements for use of such procurement list; and

"(8) any other duties determined necessary by the Secretary of Defense.

"(d) Consultation.—To carry out the duties described in subsection (c), the Panel may consult or contract with other executive agencies and with experts from qualified nonprofit agencies or central nonprofit agencies on—

"(1) compliance with disability rights laws applicable to contracts of the Department of Defense and the AbilityOne Commission;

"(2) employment of significantly disabled veterans; and

"(3) vocational rehabilitation.

"(e) Authority.—To carry out the duties described in subsection (c), the Panel may request documentation or other information needed from the AbilityOne Commission, central nonprofit agencies, and qualified nonprofit agencies.

"(f) Panel Recommendations and Milestone Dates.—

"(1) Milestone dates for implementing recommendations.—After consulting with central nonprofit agencies and qualified nonprofit agencies, the Panel shall suggest milestone dates for the implementation of the recommendations made under subsection (c) and shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, qualified nonprofit agencies, and central nonprofit agencies of such dates.

"(2) Notification of implementation of recommendations.—After the establishment of milestone dates under paragraph (1), the Panel may review the activities, including contracts, of the AbilityOne Commission, the central nonprofit agencies, and the relevant qualified nonprofit agencies to determine if the recommendations made under subsection (c) are being substantially implemented in good faith by the AbilityOne Commission or such agencies. If the Panel determines that the AbilityOne Commission or any such agency is not implementing the recommendations, the Panel shall notify the Secretary of Defense, the congressional defense committees, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate.

"(g) Remedies.—

"(1) In general.—Upon receiving notification under subsection (f)(2) and subject to the limitation in paragraph (2), the Secretary of Defense may take one of the following actions:

"(A) With respect to a notification relating to the AbilityOne Commission, the Secretary may suspend compliance with the requirement to procure a product or service in section 8504 of title 41, United States Code, until the date on which the Secretary notifies Congress, in writing, that the AbilityOne Commission is substantially implementing the recommendations made under subsection (c).

"(B) With respect to a notification relating to a qualified nonprofit agency, the Secretary may terminate a contract with such agency that is in existence on the date of receipt of such notification, or elect to not enter into a contract with such agency after such date, until the date on which the AbilityOne Commission certifies to the Secretary that such agency is substantially implementing the recommendations made under subsection (c).

"(C) With respect to a notification relating to a central nonprofit agency, the Secretary may include a term in a contract entered into after the date of receipt of such notification with a qualified nonprofit agency that is under such central nonprofit agency that states that such qualified nonprofit agency shall not pay a fee to such central nonprofit agency until the date on which the AbilityOne Commission certifies to the Secretary that such central nonprofit agency is substantially implementing the recommendations made under subsection (c).

"(2) Limitation.—If the Secretary of Defense takes any of the actions described in paragraph (1), the Secretary shall coordinate with the AbilityOne Commission or the relevant central nonprofit agency, as appropriate, to fully implement the recommendations made under subsection (c). On the date on which such recommendations are fully implemented, the Secretary shall notify Congress, in writing, and the Secretary's authority under paragraph (1) shall terminate.

"(h) Progress Reports.—

"(1) Consultation on recommendations.—Before submitting the progress report required under paragraph (2), the Panel shall consult with the AbilityOne Commission on draft recommendations made pursuant to subsection (c). The Panel shall include any recommendations of the AbilityOne Commission in the progress report submitted under paragraph (2).

"(2) Progress report.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Panel shall submit to the Secretary of Defense, the Chairman of the AbilityOne Commission, the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a progress report on the activities of the Panel.

"(i) Annual Report.—

"(1) Consultation on report.—Before submitting the annual report required under paragraph (2), the Panel shall consult with the AbilityOne Commission on the contents of the report. The Panel shall include any recommendations of the AbilityOne Commission in the report submitted under paragraph (2).

"(2) Report.—Not later than September 30, 2017, and annually thereafter for the next three years, the Panel shall submit to the Secretary of Defense, the Chairman of the AbilityOne Commission, the congressional defense committees, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report that includes—

"(A) a summary of findings and recommendations for the year covered by the report;

"(B) a summary of the progress of the relevant qualified nonprofit agencies or central nonprofit agencies in implementing recommendations of the previous year's report, if applicable;

"(C) an examination of the current structure of the AbilityOne Commission to eliminate waste, fraud, and abuse and to ensure contracting integrity and accountability for any violations of law or regulations;

"(D) recommendations for any changes to the acquisition and contracting practices of the Department of Defense and the AbilityOne Commission to improve the delivery of goods and services to the Department of Defense; and

"(E) recommendations for administrative safeguards to ensure the Department of Defense and the AbilityOne Commission are in compliance with the requirements of the Javits-Wagner-O'Day Act [see 41 U.S.C. 8501 et seq.], Federal civil rights law, and regulations and policy related to the performance of contracts of the Department of Defense with qualified nonprofit agencies and the contracts of the AbilityOne Commission with central nonprofit agencies.

"(j) Sunset.—The Panel shall terminate on the date of submission of the last annual report required under subsection (i).

"(k) Inapplicability of FACA.—The requirements of the Federal Advisory Committee Act ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.] shall not apply to the Panel established pursuant to subsection (a).

"(l) Defense Acquisition University Training.—

"(1) In general.—The Secretary of Defense shall establish a training program at the Defense Acquisition University established under section 1746 of title 10, United States Code. Such training shall include—

"(A) information about—

"(i) the mission of the AbilityOne Commission;

"(ii) the employment of significantly disabled veterans through contracts from the procurement list maintained by the AbilityOne Commission;

"(iii) reasonable accommodations and accessibility requirements for the blind and other severely disabled individuals; and

"(iv) Executive orders and other subjects related to the blind and other severely disabled individuals, as determined by the Secretary of Defense; and

"(B) procurement, acquisition, program management, and other training specific to procuring goods and services for the Department of Defense pursuant to the Javits-Wagner-O'Day Act.

"(2) Acquisition workforce assignment.—Members of the acquisition workforce (as defined in section 101 of title 10, United States Code) who have participated in the training described in paragraph (1) are eligible for a detail to the AbilityOne Commission.

"(3) Abilityone commission assignment.—Career employees of the AbilityOne Commission may participate in the training program described in paragraph (1) on a non-reimbursable basis for up to three years and on a non-reimbursable or reimbursable basis thereafter.

"(4) Funding.—Amounts from the Department of Defense Acquisition Workforce Development Fund established under section 1705 of title 10, United States Code, are authorized for use for the detail of members of the acquisition workforce to the AbilityOne Commission.

"(m) Definitions.—In this section:

"(1) The term 'AbilityOne Commission' means the Committee for Purchase From People Who Are Blind or Severely Disabled established under section 8502 of title 41, United States Code.

"(2) The terms 'blind', 'qualified nonprofit agency for the blind', 'qualified nonprofit agency for other severely disabled', and 'severely disabled individual' have the meanings given such terms under section 8501 of such title.

"(3) The term 'central nonprofit agency' means a central nonprofit agency designated under section 8503(c) of such title.

"(4) The term 'executive agency' has the meaning given such term in section 133 of such title.

"(5) The term 'Javits-Wagner-O'Day Act' means chapter 85 of such title.

"(6) The term 'qualified nonprofit agency' means—

"(A) a qualified nonprofit agency for the blind; or

"(B) a qualified nonprofit agency for other severely disabled.

"(7) The term 'significantly disabled veteran' means a veteran (as defined in section 101 of title 38, United States Code) who is a severely disabled individual."

Mitigating Potential Unfair Competitive Advantage of Technical Advisors to Acquisition Programs

Pub. L. 114–92, div. A, title VIII, §895, Nov. 25, 2015, 129 Stat. 954, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Under Secretary of Defense for Acquisition, Technology, and Logistics shall review, and as necessary revise or issue, policy guidance pertaining to the identification, mitigation, and prevention of potential unfair competitive advantage conferred to technical advisors to acquisition programs."

§4751. Determinations and decisions

(a) Individual or Class Determinations and Decisions Authorized.—Determinations and decisions required to be made under any chapter 137 legacy provision by the head of an agency may be made for an individual purchase or contract or, except to the extent expressly prohibited by another provision of law, for a class of purchases or contracts. Such determinations and decisions are final.

(b) Written Findings Required.—(1) Each determination or decision under section 3531(a), 3803, or 3841(c)(2)(B) of this title shall be based on a written finding by the person making the determination or decision. The finding shall set out facts and circumstances that support the determination or decision.

(2) Each finding referred to in paragraph (1) is final. The head of the agency making such finding shall maintain a copy of the finding for not less than 6 years after the date of the determination or decision.

(Aug. 10, 1956, ch. 1041, 70A Stat. 132, §2310; Pub. L. 85–800, §10, Aug. 28, 1958, 72 Stat. 967; Pub. L. 87–653, §1(f), Sept. 10, 1962, 76 Stat. 529; Pub. L. 89–607, §1(1), Sept. 27, 1966, 80 Stat. 850; Pub. L. 90–378, §2, July 5, 1968, 82 Stat. 290; Pub. L. 98–369, div. B, title VII, §2725, July 18, 1984, 98 Stat. 1193; Pub. L. 99–145, title XIII, §1303(a)(16), Nov. 8, 1985, 99 Stat. 739; Pub. L. 103–355, title I, §1504, Oct. 13, 1994, 108 Stat. 3297; renumbered §4751 and amended Pub. L. 116–283, div. A, title XVIII, §1864(b), (c), Jan. 1, 2021, 134 Stat. 4279.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2310(a) 2310(b)	41:156(a) (1st sentence). 41:156(c).	Feb. 19, 1948, ch. 65, §7(a) (1st sentence), (c), 62 Stat. 24.

In subsection (a), the words "required * * * under" are substituted for the words "provided in".

In subsection (b), the word "person" is substituted for the word "official". The words "to which it applies" are inserted for clarity.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1864(b), renumbered section 2310 of this title as this section.

Subsec. (a). Pub. L. 116–283, §1864(c)(1), substituted "made under any chapter 137 legacy provision" for "made under this chapter".

Subsec. (b). Pub. L. 116–283, §1864(c)(2), substituted "section 3531(a), 3803, or 3841(c)(2)(B)" for "section 2306(g)(1), 2307(d), or 2313(c)(2)(B)".

1994—Pub. L. 103–355 amended section generally. Prior to amendment, section read as follows:

"(a) Determinations and decisions required to be made under this chapter by the head of an agency may be made for an individual purchase or contract or, except for determinations and decisions under section 2304 or 2305 of this title, for a class of purchases or contracts. Such a determination or decision, including a determination or decision under section 2304 or 2305 of this title, is final.

"(b) Each determination or decision under section 2306(c), 2306(g)(1), 2307(c), or 2313(c) of this title shall be based on a written finding by the person making the determination or decision, which finding shall set out facts and circumstances that—

"(1) clearly indicate why the type of contract selected under section 2306(c) of this title is likely to be less costly than any other type or that it is impracticable to obtain property or services of the kind or quality required except under such a contract;

"(2) support the findings required by section 2306(g)(1) of this title;

"(3) clearly indicate why advance payments under section 2307(c) of this title would be in the public interest; or

"(4) clearly indicate why the application of section 2313(b) of this title to a contract or subcontract with a foreign contractor or foreign subcontractor would not be in the public interest.

Such a finding is final and shall be kept available in the agency for at least six years after the date of the determination or decision. A copy of the finding shall be submitted to the General Accounting Office with each contract to which it applies."

1985—Subsec. (a). Pub. L. 99–145 inserted "this" after "2305 of".

1984—Subsec. (a). Pub. L. 98–369, §2725(1), inserted ", except for determinations and decisions under section 2304 or 2305 of title," and ", including a determination or decision under section 2304 or 2305 of this title,".

Subsec. (b). Pub. L. 98–369, §2725(2), amended subsec. (b) generally, striking out requirement that determinations to negotiate contracts be based on written findings by the contracting officers making the determinations.

1968—Subsec. (b). Pub. L. 90–378 inserted "section 2306 (g)(1)," after "clauses (11)–(16) of section 2304(a), section 2306(c),", and "(3) support the findings required by section 2306(g)(1)," after "kind or quality required except under such a contract,", and redesignated former cls. (3) to (5) as (4) to (6), respectively.

1966—Subsec. (b). Pub. L. 89–607 inserted reference to section 2313(c), added cl. (4), and redesignated former cl. (4) as (5).

1962—Subsec. (b). Pub. L. 87–653 substituted "section 2306(c)" for "section 2306", required decisions to negotiate contracts under section 2304(a)(2), (7), (8), (10) to (12) of this title to be based on a written finding by the person making the decision, which findings shall set out facts and circumstances illustrative of conditions described in section 2304(a)(11) to (16), indicate why the type of contract selected under section 2306(c) is likely to be less costly than any other or that its impracticable to obtain the required property or services except under such contract, indicate why advance payments under section 2307(c) would be in the public interest, or establish with respect to section 2304(a), (2), (7), (8), (10) to (12) that formal advertising would not have been feasible and practicable.

1958—Subsec. (b). Pub. L. 85–800 substituted "2307(c)" for "2307(a)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1984 Amendment

Pub. L. 98–369, div. B, title VII, §2751, July 18, 1984, 98 Stat. 1203, provided that:

"(a) Except as provided in subsection (b), the amendments made by this title [see Tables for classification] shall apply with respect to any solicitation for bids or proposals issued after March 31, 1985.

"(b) The amendments made by section 2713 [amending section 759 of former Title 40, Public Buildings, Property, and Works, and enacting provisions set out as a note under section 759 of former Title 40] and subtitle D [enacting sections 3551 to 3556 of Title 31, Money and Finance] shall apply with respect to any protest filed after January 14, 1985."

Effective Date of 1962 Amendment

For effective date of amendment by Pub. L. 87–653, see section 1(h) of Pub. L. 87–653, set out as a note under section 3065 of this title.

§4752. Remission of liquidated damages

Upon the recommendation of the head of an agency, the Secretary of the Treasury may remit all or part, as he considers just and equitable, of any liquidated damages assessed for delay in performing a contract, made by that agency, that provides for such damages.

(Aug. 10, 1956, ch. 1041, 70A Stat. 132, §2312; Pub. L. 104–316, title II, §202(c), Oct. 19, 1996, 110 Stat. 3842; renumbered §4752, Pub. L. 116–283, div. A, title XVIII, §1864(b), Jan. 1, 2021, 134 Stat. 4279.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2312	41:155.	Feb. 19, 1948, ch. 65, §6, 62 Stat. 24.

The words "a contract, made by that agency, that provides for" are substituted for the words "any contract made on behalf of the Government by the agency head or by officers authorized by him so to do includes a provision".

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2312 of this title as this section.

1996—Pub. L. 104–316 substituted "Secretary of the Treasury" for "Comptroller General".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4753. Supplies: identification of supplier and sources

(a) The Secretary of Defense shall require that the contractor under a contract with the Department of Defense for the furnishing of supplies to the United States shall mark or otherwise identify supplies furnished under the contract with the identity of the contractor, the national stock number for the supplies furnished (if there is such a number), and the contractor's identification number for the supplies.

(b)(1) The Secretary of Defense shall prescribe regulations requiring that, whenever practicable, each contract requiring the delivery of supplies (other than a contract described in paragraph (2)) shall require that the contractor identify—

(A) the actual manufacturer or producer of the item or of all sources of supply of the contractor for that item;

(B) the national stock number of the item (if there is such a number) and the identification number of the actual manufacturer or producer of the item or of each source of supply of the contractor for the item; and

(C) the source of any technical data delivered under the contract.

(2) The regulations prescribed pursuant to paragraph (1) do not apply to a contract that requires the delivery of supplies that are commercial products (as defined in section 103 of title 41).

(3) The regulations prescribed pursuant to paragraph (1) do not apply to a contract for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).

(c) Identification of supplies and technical data under this section shall be made in the manner and with respect to the supplies prescribed by the Secretary of Defense.

(Aug. 10, 1956, ch. 1041, 70A Stat. 137, §2384; Pub. L. 98–525, title XII, §1231(a), Oct. 19, 1984, 98 Stat. 2599; Pub. L. 99–500, §101(c) [title X, §928(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-156, and Pub. L. 99–591, §101(c) [title X, §928(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-156; Pub. L. 99–661, div. A, title IX, formerly title IV, §928(a), Nov. 14, 1986, 100 Stat. 3936, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title IV, §4102(d), title VIII, §8105(b), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 104–106, div. D, title XLIII, §4321(b)(12), Feb. 10, 1996, 110 Stat. 672; Pub. L. 111–350, §5(b)(23), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(e)(2), Aug. 13, 2018, 132 Stat. 1869; renumbered §4753, Pub. L. 116–283, div. A, title XVIII, §1864(b), Jan. 1, 2021, 134 Stat. 4279.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2384	10:1207. 34:583.	R.S. 3731.

The words "Each contractor" are substituted for the words "Every person". The word "his" is substituted for the words "the name of the contractor furnishing such supplies". The words "of any kind" and "and distinguish [distinguished]" are omitted as surplusage. The word "may" is substituted for the word "shall".

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2021—Pub. L. 116–283 renumbered section 2384 of this title as this section.

2018—Subsec. (b)(2). Pub. L. 115–232 substituted "commercial products" for "commercial items".

2011—Subsec. (b)(2). Pub. L. 111–350, §5(b)(23)(A), substituted "section 103 of title 41)" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))".

Subsec. (b)(3). Pub. L. 111–350, §5(b)(23)(B), substituted "section 134 of title 41)" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))".

1996—Subsec. (b)(2). Pub. L. 104–106, §4321(b)(12)(A), substituted "items (as" for "items, as" and inserted a closing parenthesis after "403(12))".

Subsec. (b)(3). Pub. L. 104–106, §4321(b)(12)(B), inserted a closing parenthesis after "403(11))".

1994—Subsec. (b)(2). Pub. L. 103–355, §8105(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Paragraph (1) does not apply to a contract that requires the delivery of supplies that are commercial items sold in substantial quantities to the general public if the contract—

"(A) provides for the acquisition of such supplies by the Department of Defense at established catalog or market prices; or

"(B) is awarded through the use of competitive procedures."

Subsec. (b)(3). Pub. L. 103–355, §4102(d), added par. (3).

1986—Subsec. (b). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661, amended subsec. (b) identically, designating existing provision as par. (1), redesignating former pars. (1) to (3) as subpars. (A) to (C), respectively, and inserting in provision preceding subpar. (A) "(other than a contract described in paragraph (2))", and adding par. (2).

1984—Pub. L. 98–525 amended section generally, substituting "identification of supplier and sources" for "marking with name of contractor" in section catchline, and, in text, substituting provisions designated subsec. (a) and relating to the marking of supplies, providing the national stock number for the supplies furnished, and the contractor's identification number for requirement that each contractor furnishing supplies to a military department mark the supplies with his name in the manner directed by the Secretary of the Department and prohibition of receipt of supplies unless so marked and adding subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–500, §101(c) [title X, §928(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-156, Pub. L. 99–591, §101(c) [title X, §928(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-156, and Pub. L. 99–661, Pub. L. 99–661, div. A, title IX, formerly title IV, §928(b), Nov. 14, 1986, 100 Stat. 3936, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made by subsection (a) [amending this section] shall apply with respect to contracts entered into after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."

Effective Date of 1984 Amendment

Pub. L. 98–525, title XII, §1231(b), Oct. 19, 1984, 98 Stat. 2600, provided that: "The amendment made by subsection (a) [amending this section] shall take effect at the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984]."

§4754. Management of purchase cards

(a) Management of Purchase Cards.—The Secretary of Defense shall prescribe regulations governing the use and control of all purchase cards and convenience checks that are issued to Department of Defense personnel for official use. Those regulations shall be consistent with regulations that apply Government-wide regarding use of purchase cards by Government personnel for official purposes.

(b) Required Safeguards and Internal Controls.—Regulations under subsection (a) shall include safeguards and internal controls to ensure the following:

(1) That there is a record in the Department of Defense of each holder of a purchase card issued by the Department of Defense for official use, annotated with the limitations on amounts that are applicable to the use of each such card by that purchase card holder.

(2) That each purchase card holder and individual issued a convenience check is assigned an approving official other than the card holder with the authority to approve or disapprove transactions.

(3) That the holder of a purchase card and each official with authority to authorize expenditures charged to the purchase card are responsible for—

(A) reconciling the charges appearing on each statement of account for that purchase card with receipts and other supporting documentation; and

(B) forwarding that statement after being so reconciled to the designated disbursing office in a timely manner.

(4) That any disputed purchase card charge, and any discrepancy between a receipt and other supporting documentation and the purchase card statement of account, is resolved in the manner prescribed in the applicable Government-wide purchase card contract entered into by the Administrator of General Services.

(5) That payments on purchase card accounts are made promptly within prescribed deadlines to avoid interest penalties.

(6) That rebates and refunds based on prompt payment on purchase card accounts are properly recorded.

(7) That records of each purchase card transaction (including records on associated contracts, reports, accounts, and invoices) are retained in accordance with standard Government policies on the disposition of records.

(8) That periodic reviews are performed to determine whether each purchase card holder has a need for the purchase card.

(9) That appropriate training is provided to each purchase card holder and each official with responsibility for overseeing the use of purchase cards issued by the Department of Defense.

(10) That the Department of Defense has specific policies regarding the number of purchase cards issued by various organizations and categories of organizations, the credit limits authorized for various categories of card holders, and categories of employees eligible to be issued purchase cards, and that those policies are designed to minimize the financial risk to the Federal Government of the issuance of the purchase cards and to ensure the integrity of purchase card holders.

(11) That the Department of Defense uses effective systems, techniques, and technologies to prevent or identify potential fraudulent purchases.

(12) That the Department of Defense takes appropriate steps to invalidate the purchase card of each card holder who—

(A) in the case of an employee of the Department—

(i) ceases to be employed by the Department, immediately upon termination of the employment of the employee; or

(ii) transfers to another unit of the Department, immediately upon the transfer of the employee unless the Secretary of Defense determines that the units are covered by the same purchase card authority; and

(B) in the case of a member of the armed forces, is separated or released from active duty or full-time National Guard duty.

(13) That the Department of Defense takes steps to recover the cost of any illegal, improper, or erroneous purchase made with a purchase card or convenience check by an employee or member of the armed forces, including, as necessary, through salary offsets.

(14) That the Inspector General of the Department of Defense, the Inspector General of the Army, the Naval Inspector General, and the Inspector General of the Air Force perform periodic audits to identify—

(A) potentially fraudulent, improper, and abusive uses of purchase cards;

(B) any patterns of improper card holder transactions, such as purchases of prohibited items; and

(C) categories of purchases that should be made by means other than purchase cards in order to better aggregate purchases and obtain lower prices.

(15) That the Inspector General of the Department of Defense conducts periodic audits or reviews of purchase card or convenience check programs to identify and analyze risks of illegal, improper, or erroneous purchases and payments and that the findings of such audits or reviews, along with recommendations to prevent abuse of purchase cards or convenience checks, are reported to the Director of the Office of Management and Budget and Congress.

(c) Penalties for Violations.—The regulations prescribed under subsection (a) shall—

(1) provide—

(A) for the reimbursement of charges for unauthorized or erroneous purchases, in appropriate cases; and

(B) for appropriate adverse personnel actions or other punishment to be imposed in cases in which employees of the Department of Defense violate such regulations or are negligent or engage in misuse, abuse, or fraud with respect to a purchase card, including removal in appropriate cases; and

(2) provide that a violation of such regulations by a person subject to chapter 47 of this title (the Uniform Code of Military Justice) is punishable as a violation of section 892 of this title (article 92 of the Uniform Code of Military Justice).

(Added Pub. L. 106–65, div. A, title IX, §933(a)(1), Oct. 5, 1999, 113 Stat. 728, §2784; amended Pub. L. 107–314, div. A, title X, §1007(a), (b)(1), Dec. 2, 2002, 116 Stat. 2633, 2634; Pub. L. 110–417, [div. A], title X, §1003(a), Oct. 14, 2008, 122 Stat. 4582; Pub. L. 112–194, §2(b), Oct. 5, 2012, 126 Stat. 1447; renumbered §4754, Pub. L. 116–283, div. A, title XVIII, §1864(b), Jan. 1, 2021, 134 Stat. 4279.)

Editorial Notes

Prior Provisions

Prior sections 4771 and 4772 were renumbered sections 7771 and 7772 of this title, respectively.

A prior section 4774, acts Aug. 10, 1956, ch. 1041, 70A Stat. 269; Aug. 30, 1957, Pub. L. 85–241, title IV, §404(a), 71 Stat. 555; Aug. 10, 1959, Pub. L. 86–149, title IV, §410(a), 73 Stat. 321; July 27, 1962, Pub. L. 87–554, title V, §504(a), (c), 76 Stat. 239; Nov. 7, 1963, Pub. L. 88–174, title V, §503, 77 Stat. 325; Dec. 5, 1969, Pub. L. 91–142, title V, §510(b), 83 Stat. 312; Oct. 27, 1971, Pub. L. 92–145, title V, §508(a), (c), 85 Stat. 408; Nov. 29, 1973, Pub. L. 93–166, title V, §509(c), 87 Stat. 677, related to limitations on construction, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982.

A prior section 4775, act Aug. 10, 1956, ch. 1041, 70A Stat. 269, authorized assignment of quarters belonging to United States at a post or station by post quartermaster to officers, grade lieutenant general down to second lieutenant, 10 to 2 rooms, respectively, and prohibited other assignment where quarters existed, prior to repeal by Pub. L. 92–145, title V, §509(a), Oct. 27, 1971, 85 Stat. 408.

Prior sections 4776 to 4780 were renumbered sections 7776 to 7780 of this title, respectively.

A prior section 4781 was renumbered section 7781 of this title.

Another section 4781, added Pub. L. 115–31, div. N, title VI, §602(a), May 5, 2017, 131 Stat. 828, was substantially identical to the prior section 4781, and related to Cyber Center for Education and Innovation-Home of the National Cryptologic Museum, prior to repeal by Pub. L. 115–91, div. A, title X, §1081(a)(49)(A), Dec. 12, 2017, 131 Stat. 1597.

Amendments

2021—Pub. L. 116–283 renumbered section 2784 of this title as this section.

2012—Subsec. (b)(2) to (15). Pub. L. 112–194 added pars. (2), (11) to (13), and (15) and redesignated former pars. (2) to (7) and (8) as (3) to (8) and (14), respectively.

2008—Subsec. (c)(1). Pub. L. 110–417 substituted "provide—" for "provide", added subpar. (A), and substituted "(B) for" for "for".

2002—Pub. L. 107–314, §1007(b)(1)(A), substituted "purchase" for "credit" in section catchline.

Subsec. (a). Pub. L. 107–314, §1007(a)(1), (b)(1)(B), (C), substituted "Purchase" for "Credit" in heading and "purchase" for "credit" in two places in text and struck out ", acting through the Under Secretary of Defense (Comptroller)," after "Secretary of Defense".

Subsec. (b)(1) to (6). Pub. L. 107–314, §1007(b)(1)(C), substituted "purchase" for "credit" wherever appearing.

Subsec. (b)(7) to (10). Pub. L. 107–314, §1007(a)(2), added pars. (7) to (10).

Subsec. (c). Pub. L. 107–314, §1007(a)(2), added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Regulations

Pub. L. 106–65, div. A, title IX, §933(b)(1), Oct. 5, 1999, 113 Stat. 730, provided that: "Regulations under section 2784 of title 10, United States Code [now 10 U.S.C. 4754], as added by subsection (a), shall be prescribed not later than 180 days after the date of the enactment of this Act [Oct. 5, 1999]."

Crediting of Refunds

Pub. L. 110–116, div. A, title VIII, §8067, Nov. 13, 2007, 121 Stat. 1329, provided that: "Beginning in the current fiscal year and hereafter, refunds attributable to the use of the Government travel card, refunds attributable to the use of the Government Purchase Card and refunds attributable to official Government travel arranged by Government Contracted Travel Management Centers may be credited to operation and maintenance, and research, development, test and evaluation accounts of the Department of Defense which are current when the refunds are received."

Government Charge Card Accounts: Limitation on Number; Requirements for Issuance; Disciplinary Action for Misuse; Report

Pub. L. 107–248, title VIII, §8149, Oct. 23, 2002, 116 Stat. 1572, as amended by Pub. L. 108–87, title VIII, §8144, Sept. 30, 2003, 117 Stat. 1108, provided that:

"(a) Limitation on Number of Government Charge Card Accounts during Fiscal Year 2003.—The total number of accounts for government purchase charge cards and government travel charge cards for Department of Defense personnel during fiscal year 2003 may not exceed 1,500,000 accounts.

"(b) Requirement for Creditworthiness for Issuance of Government Charge Card.—(1) The Secretary of Defense shall evaluate the creditworthiness of an individual before issuing the individual a government purchase charge card or government travel charge card.

"(2) An individual may not be issued a government purchase charge card or government travel charge card if the individual is found not credit worthy as a result of the evaluation under paragraph (1).

"(3) This subsection shall remain in effect for fiscal year 2004.

"(c) Disciplinary Action for Misuse of Government Charge Card.—(1) The Secretary shall establish guidelines and procedures for disciplinary actions to be taken against Department personnel for improper, fraudulent, or abusive use of government purchase charge cards and government travel charge cards.

"(2) The guidelines and procedures under this subsection shall include appropriate disciplinary actions for use of charge cards for purposes, and at establishments, that are inconsistent with the official business of the Department or with applicable standards of conduct.

"(3) The disciplinary actions under this subsection may include—

"(A) the review of the security clearance of the individual involved; and

"(B) the modification or revocation of such security clearance in light of the review.

"(4) The guidelines and procedures under this subsection shall apply uniformly among the Armed Forces and among the elements of the Department.

"(d) Report.—Not later than June 30, 2003, the Secretary shall submit to the congressional defense committees [Committees on Armed Services of the Senate and the House of Representatives and Subcommittees on Defense of the Committees on Appropriations of the Senate and the House of Representatives] a report on the implementation of the requirements and limitations in this section, including the guidelines and procedures established under subsection (c)."