CHAPTER 1 —GENERAL PROVISIONS
Executive Order No. 10925
Ex. Ord. No. 10925, Mar. 6, 1961, 26 F.R. 1977, which related to nondiscrimination provisions in Government contracts and established the President's Committee on Equal Employment Opportunity, was revoked by section 403 of Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under
§§1 to 4a. Repealed. Oct. 21, 1941, ch. 452, 55 Stat. 743
Section 1, R.S. §512; act Feb. 4, 1929, ch. 146, §§1, 3,
Section 2, R.S. §513, required clerk to file all returns.
Section 3, R.S. §514, required clerk to keep an index book.
Section 4, R.S. §515, required clerk to provide certified copies of any returns for an established fee.
Section 4a, act Feb. 4, 1929, ch. 146, §§1, 3,
§5. Advertisements for proposals for purchases and contracts for supplies or services for Government departments; application to Government sales and contracts to sell and to Government corporations
Unless otherwise provided in the appropriation concerned or other law, purchases and contracts for supplies or services for the Government may be made or entered into only after advertising a sufficient time previously for proposals, except (1) when the amount involved in any one case does not exceed $25,000, (2) when the public exigencies require the immediate delivery of the articles or performance of the service, (3) when only one source of supply is available and the Government purchasing or contracting officer shall so certify, or (4) when the services are required to be performed by the contractor in person and are (A) of a technical and professional nature or (B) under Government supervision and paid for on a time basis. Except (1) as authorized by section 1638 1 of Appendix to title 50, (2) when otherwise authorized by law, or (3) when the reasonable value involved in any one case does not exceed $500, sales and contracts of sale by the Government shall be governed by the requirements of this section for advertising.
In the case of wholly owned Government corporations, this section shall apply to their administrative transactions only.
(R.S. §3709; Aug. 2, 1946, ch. 744, §9(a), (c),
References in Text
Section 1638 of Appendix to title 50, referred to in text, was repealed by act June 30, 1949, ch. 288, title VI, §602(a)(1), formerly title V, §502(a)(1),
Codification
R.S. §3709 derived from act Mar. 2, 1861, ch. 84, §10,
Section is also set out in the District of Columbia Code, §1–1110.
Amendments
1983—
1974—
1958—
1949—Act June 30, 1949, substituted "$500" for "$100".
1946—Act Aug. 2, 1946, among other changes, inserted cls. (1), (3), and (4), and made section applicable to sales and contracts of sale by the Government, except in certain cases.
Effective Date of 1949 Amendment
Amendment by act June 30, 1949, effective July 1, 1949, see section 605 of act June 30, 1949, set out as an Effective Date note under
Exemption of Functions
Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, May 12, 1965, 30 F.R. 6635, set out as a note under
Section Inapplicable to Armed Services and National Aeronautics and Space Administration
Section inapplicable to procurement of supplies or services by Armed Services and National Aeronautics and Space Administration, see
Repeal of Exemptions
Section 9(b) of act Aug. 2, 1946, provided: "Exemptions from section 3709, Revised Statutes [this section], in other law in amounts of $100 or less are hereby repealed."
Cross References
Architect of Capitol, procurement of supplies and services, see
Armed services, procurement of supplies and services, see
Conservation, National Park Service—
Hiring of work animals and equipment not required to comply with this section in certain cases, see
Seeding and tree planting within national forests, open purchases without advertisement, see
Services and accommodations for public in national parks and national monuments, see
Contracts for transportation of moneys, bullion, coin, etc., see
Control of coal-mine fires, employment of equipment by Secretary of Interior without regard to this section, see
Definition of terms employed in this section, see
Farm Credit Administration, maintenance and disposal of properties by, see
Farm Housing, service and supply contracts less than specified amount unaffected by provisions of this section, see
Federal Deposit Insurance Corporation, Comptroller General authorized for purposes of audit thereof to employ by contract professional services of firms and organizations of certified public accountants without regard to this section, see
Federal Power Commission—
Bonneville power project, purchase of supplies and services without advertisement, see
Contracts for engraving, lithographing, and photolithographing, without advertisement for proposals, see
Fort Peck power project, purchase of supplies and services without advertisement, see
Fishery resources, authority of Secretary of Interior to contract to utilize state facilities and services without regard to this section, see
Highway research program, inapplicability of this section to contracts, see
House of Representatives, procurement of packing boxes, see
Housing—
Contracts for hazard insurance and purchases by Federal Housing Commissioner, excepted, see
Purchases and contracts by Department of Housing and Urban Development and Office of Thrift Supervision excepted from this section, see
Purchases and contracts for services or supplies under specified amount for national defense housing excepted from this section, see
International health research, authority of President to contract with public and nonprofit private institutions and agencies and individuals in participating foreign countries without regard to provisions of this section, see
Menominee Indian Reservation, supplies for operations on reservation, and sale of Indian-produced forest products, see
National Fisheries Center and Aquarium, authority of Secretary of Interior to provide for vessels for specimen collecting purposes without regard to this section, see
National Science Foundation, contracts and other arrangements, see
Procurement of transportation services from common carrier, exception of, see
Public Printing—
Authority required to authorize publication of advertisements, notices, or proposals for any Executive Department, see
Purchase of paper and materials for the Government Printing Office, see
Railroad Retirement Board, services and supplies for, see
Reconditioning of foreign merchant vessels acquired under emergency authority, see
References to this section deemed references to
Small Business Administrator, power to pursue assigned claims to final collection in connection with loans, see
State Department—
Institution for training, acquisition of realty and other property and equipment for without regard to this section, see
International Labour Conference, printing and binding for without regard to this section, see
International Refugee Organization, funds available for expenditure without regard to this section, see
South Pacific Commission, printing and binding for without regard to this section, see
United Nations, printing and binding for without regard to this section, see
Stationery for United States Senate and House of Representatives, advertisement for sealed proposals, see
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§5a. Definitions
The word "department" as used in this Act shall be construed to include independent establishments, other agencies, wholly owned Government corporations (the transactions of which corporations shall be subject to the authorizations and limitations of this Act, except that
(Aug. 2, 1946, ch. 744, §18,
References in Text
This Act, referred to in text, means act Aug. 2, 1946, ch. 744,
Codification
"
Section was formerly classified to
Section Referred to in Other Sections
This section is referred to in title 31 section 1344.
§6. Repealed. Oct. 31, 1951, ch. 654, §1(98)–(105), 65 Stat. 705
Section, acts Oct. 10, 1940, ch. 851, §1,
Another provision of title III of act July 2, 1942, ch. 472,
A prior section 6, acts Feb. 27, 1893, ch. 168,
§6a. Advertisements for proposals for purchases and contracts for supplies or services for Government departments; limited to particular agencies under specified circumstances
(a) American Battle Monuments Commission—to any leases in foreign countries for office or garage space.
(b) to (e) Repealed. Oct. 31, 1951, ch. 654, §1(107),
(f) The Bureau of Interparliamentary Union for Promotion of International Arbitration—to stenographic reporting services by contract if deemed necessary.
(g) Repealed. Oct. 31, 1951, ch. 654, §1(107),
(h) Department of State—when the purchase or service relates to the packing of personal and household effects of Diplomatic, Consular, and Foreign Service officers and clerks for foreign shipment.
(i) Repealed. Oct. 31, 1951, ch. 654, §1(107),
(j) The International Committee of Aerial Legal Experts—to stenographic and other service by contract as deemed necessary.
(June 12, 1917, ch. 27,
Codification
Opening par., and subsecs. (a), (f), (h), and (j) of this section are from act Oct. 10, 1940, §2, opening par., and pars. (a), (f), and (j). Remainder of paragraphs of section 2 were repealed. See 1951 amendment note set out under this section.
Subsec. (o) of this section, which was from Act May 13, 1926, ch. 294, §1,
Subsec. (p) of this section, which was from act June 12, 1917, ch. 27, §1,
Prior Provisions
A prior section 6a, acts Jan. 25, 1929, ch. 102, title IV,
Amendments
1957—Subsec. (o).
1951—Subsec. (a). Act Oct. 31, 1951, §3(8), struck out "to any purchases when the aggregate amount involved does not exceed $500, nor" before "to any leases".
Subsec. (b). Act Oct. 31, 1951, §1(107), repealed subsec. (b) which related to Botanic Garden.
Subsec. (c). Act Oct. 31, 1951, §1(107), repealed subsec. (c) which also related to Botanic Garden.
Subsec. (d). Act Oct. 31, 1951, §1(107), repealed subsec. (d) which related to Bureau of the Budget.
Subsec. (e). Act Oct. 31, 1951, §1(107), repealed subsec. (e) which related to Bureau of Foreign and Domestic Commerce.
Subsec. (g). Act Oct. 31, 1951, §1(107), repealed subsec. (g) which related to Department of the Interior.
Subsec. (h). Act Oct. 31, 1951, §3(9), struck out "to any purchase or service when the aggregate amount does not exceed $100, or with respect to articles, materials, or supplies for use outside the United States when the aggregate amount involved does not exceed $300; or" before "when the purchase".
Subsec. (i). Act Oct. 31, 1951, §1(107), repealed subsec. (i) which related to Federal Communications Commission.
Subsec. (k). Act Oct. 31, 1951, §1(107), repealed subsec. (k) which related to Medical Department of the Army.
Subsec. (l). Act Oct. 31, 1951, §1(107), repealed subsec. (l) which related to Social Security Board.
Subsec. (m). Act Oct. 31, 1951, §1(107), repealed subsec. (m) which related to Bureau of Mines.
Subsec. (n). Act Oct. 31, 1951, §1(107), repealed subsec. (n) which related to Bureau of Reclamation.
Subsec. (o). Act Oct. 31, 1951, §4(9), increased the maximum from $200 to $500.
1941—Subsec. (m). Act June 28, 1941, reaffirmed provision respecting Bureau of Mines.
Repeals
Section 1(108) of act Oct. 31, 1951, repealed the proviso in act June 28, 1941, cited as a credit to this section, which excepted expenditures not exceeding $500 by the Bureau of Mines from
Section 1(106) of act Oct. 31, 1951, repealed the proviso in act June 12, 1917, cited as a credit to this section, which excepted expenditures not exceeding $50 by the United States Geological Survey from
Section 4(a) of act Oct. 10, 1940, provided for repeal of all prior laws, which are covered by that act and that any rights or liabilities existing under those repealed sections or parts of sections shall not be affected by their repeal.
Leases for Foreign Service Offices
Provisions contained in annual appropriation acts for the Department of State authorizing the Secretary of State to enter into leases for Foreign Service offices and grounds for periods not exceeding ten years without regard to
Bureau of Employees' Compensation
Government-Owned Furniture Removed to Washington, D.C.
Act July 30, 1947, ch. 359, title I,
Section Inapplicable to Armed Services and National Aeronautics and Space Administration
Section inapplicable to procurement of supplies or services by Armed Services and National Aeronautics and Space Administration, see
Cross References
Exemption of all purchases and contracts when the amount involved does not exceed specified amount, see
General Services Administration, section inapplicable to procurement of property or services by, see
§6a–1. Architect of the Capitol, exception from advertisement requirements
On and after July 27, 1965, the purchase of supplies and equipment and the procurement of services for all branches under the Architect of the Capitol may be made in the open market without compliance with
(
Prior Provisions
A prior section 6a–1, acts June 25, 1910, ch. 431, §23,
Amendments
1983—
1974—
§6a–2. Architect of the Capitol, authority for personal services contracts with legal entities
Notwithstanding any other provision of law, the Architect of the Capitol is authorized to contract for personal services with any firm, partnership, corporation, association, or other legal entity in the same manner as he is authorized to contract for personal services with individuals under the provisions of
(
§6b. Miscellaneous exceptions from advertisement requirements
(a) Control of insects, pests, and grass diseases
Materials and equipment for the control of incipient or emergency outbreaks of insects, pests, or grass diseases, including grasshoppers, Mormon crickets, and chinch bugs, may be procured with any sums appropriated to carry out the provisions of
(b) Omitted
(c) Operations on Menominee Indian Reservation
All contracts for labor or supplies necessary for the carrying on of operations on the Menominee Indian Reservation pursuant to the Act of March 28, 1908 (
(d) Sale of Indian produced forest products
The lumber and other forest products produced by Indian enterprises from the forests on Indian reservations may be sold under such regulations as the Secretary of the Interior may prescribe, without compliance with
(June 24, 1940, ch. 412,
References in Text
Act of March 28, 1908 (
Codification
Subsecs. (a) to (c) are from act Oct. 10, 1940. Subsec. (b), which related to obligations of Civilian Conservation Corps, was omitted because the Corps was liquidated June 30, 1944.
Subsec. (d) is from act June 24, 1940, which was formerly classified to
Subsec. (e), which related to the employment of experts or consultants in the Canal Zone, was from the General Government Matters Appropriation Act, 1962,
May 13, 1960,
July 13, 1959,
June 25, 1958,
June 13, 1957,
June 20, 1956, ch. 415, title II, §203,
June 30, 1955, ch. 253, title II, §203,
June 30, 1954, ch. 425, §104,
July 27, 1953, ch. 245, §104,
July 11, 1952, ch. 669, §104,
Oct. 24, 1951, ch. 556, §104,
Sept. 6, 1950, ch. 896, Ch. IX, §103,
Oct. 13, 1949, ch. 688, §4,
June 25, 1948, ch. 655, §4,
July 31, 1947, ch. 411, §4,
May 2, 1946, ch. 247, §4,
Mar. 31, 1945, ch. 45, §4,
June 26, 1944, ch. 275, §4,
June 2, 1943, ch. 115, §4,
Apr. 28, 1942, ch. 246, §5,
June 24, 1940, ch. 412,
Prior Provisions
A prior section 6b, acts Feb. 23, 1931, ch. 281,
Transfer of Functions
Functions of all officers, agencies and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by Reorg. Plan No. 2 of 1953, §1, eff. June 4, 1953, 18 F.R. 3219,
§§6c to 6jj. Repealed. Oct. 10, 1940, ch. 851, §4, 54 Stat. 1111
Section 6c, acts June 22, 1936, ch. 689,
Section 6d, acts June 22, 1936, ch. 689,
Section 6e, acts May 14, 1937, ch. 180, title I,
Section 6f, acts June 16, 1937, ch. 359, title I,
Section 6g, acts June 16, 1937, ch. 359, title II,
Section 6h, acts June 16, 1937, ch. 359, title III,
Section 6i, acts June 28, 1937, ch. 396,
Section 6j, acts June 28, 1937, ch. 396,
Section 6k, acts June 28, 1937, ch. 396,
Section 6l, acts June 28, 1937, ch. 396,
Section 6m, acts June 28, 1937, ch. 396,
Section 6n, acts June 28, 1937, ch. 396,
Section 6o, act Apr. 6, 1937, ch. 69, §3, as added May 9, 1938, ch. 192,
Section 6p, act May 23, 1938, ch. 259,
Section 6q, acts June 25, 1938, ch. 681, title I,
Section 6r, acts Mar. 16, 1939, ch. 11,
Section 6s, acts Aug. 7, 1935, ch. 455,
Section 6t, acts May 15, 1936, ch. 405,
Section 6u, acts Feb. 20, 1929, ch. 270,
Section 6v, acts June 28, 1937, ch. 396,
Section 6v–1, act Apr. 18, 1940, ch. 107,
Section 6w, acts June 16, 1938, ch. 464,
Section 6x, act Aug. 25, 1937, ch. 757, title I,
Section 6y, acts Aug. 9, 1939, ch. 633, title I,
Section 6z, act Apr. 18, 1940, ch. 107,
Section 6aa, act Apr. 18, 1940, ch. 107,
Section 6bb, act Apr. 18, 1940, ch. 107,
Section 6cc, act Apr. 18, 1940, ch. 107,
Section 6dd, act Apr. 18, 1940, ch. 107,
Section 6ee, acts Feb. 11, 1927, ch. 104,
Section 6ff, act May 14, 1940, ch. 189, title I,
Section 6gg, act May 14, 1940, ch. 189, title IV,
Section 6hh, act June 11, 1940, ch. 313, title I,
Section 6ii, acts Jan. 25, 1929, ch. 102, title III,
Section 6jj, acts May 13, 1926, ch. 294,
§6kk. Omitted
Codification
Section, acts Apr. 17, 1936, ch. 233,
§6ll. Repealed. Oct. 10, 1940, ch. 851, §4, 54 Stat. 1111
Section, act Apr. 22, 1926, ch. 171,
§6mm. Transferred
Codification
Section, act June 24, 1940, ch. 412,
§§7 to 7d. Repealed. June 30, 1949, ch. 288, title VI, §602(a)(29)–(31), formerly title V, §502(a)(29)–(31), 63 Stat. 401 ; renumbered Sept. 5, 1950, ch. 849, §6(a), (b), 64 Stat. 583
Section 7, act June 17, 1910, ch. 297, §4,
Section 7a, act Feb. 27, 1929, ch. 354, §1,
Section 7b, act Feb. 27, 1929, ch. 354, §2,
Section 7c, act Feb. 27, 1929, ch. 354, §3,
Section 7c–1, act May 14, 1935, ch. 110,
Section 7d, act Feb. 27, 1929, ch. 354, §4,
For similar subject matter, see
Effective Date of Repeal
Repeal effective July 1, 1949, see section 605 of act June 30, 1949.
§8. Opening bids
Whenever proposals for supplies have been solicited, the parties responding to such solicitation shall be duly notified of the time and place of opening the bids, and be permitted to be present either in person or by attorney, and a record of each bid shall then and there be made.
(R.S. §3710.)
Codification
R.S. §3710 derived from Res. Jan. 31, 1868, No. 8,
Exemption of Functions
Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30 F.R. 6635, set out as a note under
Section Referred to in Other Sections
This section is referred to in
§9. Repealed. Feb. 19, 1948, ch. 65, §11(a), 62 Stat. 25
Section, R.S. §3717, related to separate proposals for works or material or labor. See
Effective Date of Repeal
Repeal effective 90 days after Feb. 19, 1948, see section 13 of act Feb. 19, 1948.
§10. Omitted
Codification
Section, act Mar. 3, 1875, ch. 133, §2,
§10a. American materials required for public use
Notwithstanding any other provision of law, and unless the head of the department or independent establishment concerned shall determine it to be inconsistent with the public interest, or the cost to be unreasonable, only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, shall be acquired for public use. This section shall not apply with respect to articles, materials, or supplies for use outside the United States, or if articles, materials, or supplies of the class or kind to be used or the articles, materials, or supplies from which they are manufactured are not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. This section shall not apply to manufactured articles, materials, or supplies procured under any contract the award value of which is less than or equal to the micro-purchase threshold under
(Mar. 3, 1933, ch. 212, title III, §2,
Amendments
1994—
1988—
Effective Date of 1994 Amendment
Section 4301(c) of
"(1) section 32 of the Office of Federal Procurement Policy Act [
"(2) the amendment made by subsection (b) [amending this section];
shall take effect on the date of the enactment of this Act [Oct. 13, 1994] and shall be implemented in the Federal Acquisition Regulation not later than 60 days after such date of enactment."
Effective and Termination Dates of 1988 Amendment
Section 7004 of title VII of
Section 7005(f) of title VII of
Short Title of 1988 Amendment
Section 7001 of title VII of
Short Title
Section 7, formerly section 5, of title III of act Mar. 3, 1933, as added by
Implementation of Buy American Act With Respect to Certain Water Resource Projects
"(a)
"(b)
Exemption of Functions
Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30 F.R. 6635, set out as a note under
Applicability of Buy American Act With Respect to European Community
For applicability of Buy American Act to procurements covered by agreement with the European Community on government procurement, see Ex. Ord. No. 12849, May 25, 1993, 58 F.R. 30931, set out as a note under
Act Referred to in Other Sections
The Buy American Act is referred to in
Section Referred to in Other Sections
This section is referred to in
§10b. Contracts for public works; specification for use of American materials; blacklisting contractors violating requirements
(a) Every contract for the construction, alteration, or repair of any public building or public work in the United States growing out of an appropriation heretofore made or hereafter to be made shall contain a provision that in the performance of the work the contractor, subcontractors, material men, or suppliers, shall use only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States except as provided in
(b) If the head of a department, bureau, agency, or independent establishment which has made any contract containing the provision required by subsection (a) of this section finds that in the performance of such contract there has been a failure to comply with such provisions, he shall make public his findings, including therein the name of the contractor obligated under such contract, and no other contract for the construction, alteration, or repair of any public building or public work in the United States or elsewhere shall be awarded to such contractor, subcontractors, material men, or suppliers with which such contractor is associated or affiliated, within a period of three years after such findings is made public.
(Mar. 3, 1933, ch. 212, title III, §3,
Amendments
1988—Subsec. (a).
Subsec. (b).
Termination Date of 1988 Amendment
Amendment by
Prohibition on Use of Funds for Construction Contracts With Contractors of Foreign Countries Which Deny United States Contractors Fair Opportunities in Construction Projects of That Country's Government
Provisions prohibiting the obligation or expenditure of funds to enter into any contract for construction, alteration, or repair of any public building or public work in the United States or any territory or possession of the United States with any contractor or subcontractor of a foreign country, or any supplier of products of a foreign country, during any period in which such foreign country denies fair and equitable market opportunities for products and services of the United States in procurement or bidding for construction projects that cost more than $500,000 and are funded in whole or in part by the government of such foreign country or by an entity controlled directly or indirectly by such foreign country were contained in the following appropriation acts:
Section Referred to in Other Sections
This section is referred to in
§10b–1. Omitted
Codification
Section, act Mar. 3, 1933, ch. 212, title III, §4, as added Aug. 23, 1988,
Another prior section 4 of act Mar. 3, 1933, was temporarily renumbered section 5 and is set out as a note under
§10b–2. Limitation on authority to waive Buy American Act requirement
(a) Determination by Secretary of Defense
(1) If the Secretary of Defense, after consultation with the United States Trade Representative, determines that a foreign country which is party to an agreement described in paragraph (2) has violated the terms of the agreement by discriminating against certain types of products produced in the United States that are covered by the agreement, the Secretary of Defense shall rescind the Secretary's blanket waiver of the Buy American Act with respect to such types of products produced in that foreign country.
(2) An agreement referred to in paragraph (1) is any reciprocal defense procurement memorandum of understanding, between the United States and a foreign country pursuant to which the Secretary of Defense has prospectively waived the Buy American Act for certain products in that country.
(b) Report to Congress
The Secretary of Defense shall submit to the Congress a report on the amount of Department of Defense purchases from foreign entities in fiscal year 2000. Such report shall separately indicate the dollar value of items for which the Buy American Act was waived pursuant to any agreement described in subsection (a)(2) of this section, the Trade Agreement Act of 1979 (
(c) "Buy American Act" defined
For purposes of this section, the term "Buy American Act" means title III of the Act entitled "An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes", approved March 3, 1933 (
(
References in Text
The Buy American Act, referred to in text, is title III of act Mar. 3, 1933, ch. 212,
The Trade Agreement Act of 1979, referred to in subsec. (b), probably means the Trade Agreements Act of 1979,
Prior Provisions
Provisions similar to those in this section were contained in the following prior acts:
Buy American Act Waiver Rescissions
"(c)
"(2) An agreement referred to in paragraph (1) is any reciprocal defense procurement memorandum of understanding between the United States and a foreign country pursuant to which the Secretary of Defense has prospectively waived the Buy American Act for certain products in that country.
"(d)
§10b–3. Annual report relating to Buy American Act
The Secretary of Defense shall submit to Congress, not later than 60 days after the end of each fiscal year, a report on the amount of purchases by the Department of Defense from foreign entities in that fiscal year. Such report shall separately indicate the dollar value of items for which the Buy American Act (
(1) Any reciprocal defense procurement memorandum of understanding described in section 849(c)(2) of
(2) The Trade Agreements Act of 1979 (
(3) Any international agreement to which the United States is a party.
(
References in Text
The Buy American Act, referred to in text, is title III of act Mar. 3, 1933, ch. 212,
The Trade Agreements Act of 1979, referred to in par. (2), is
Amendments
1998—
1997—
§10c. Definition of terms used in sections 10a, 10b, and 10c
When used in
(a) The term "United States", when used in a geographical sense, includes the United States and any place subject to the jurisdiction thereof;
(b) The terms "public use", "public building", and "public work" shall mean use by, public building of, and public work of, the United States, the District of Columbia, Puerto Rico, American Samoa, the Canal Zone, and the Virgin Islands.
(Mar. 3, 1933, ch. 212, title III, §1,
References in Text
For definition of Canal Zone, referred to in subsec. (b), see
Codification
Words "the Philippine Islands" in subsec. (b) of this section were deleted as obsolete in view of recognition of independence of the Philippines by Proc. No. 2695, which was issued pursuant to
Amendments
1988—Subsec. (c).
1960—Subsec. (b).
1959—Subsec. (b).
Termination Date of 1988 Amendment
Amendment by
Effective Date
Section 4 of title III of act Mar. 3, 1933, as temporarily renumbered §5 by
Separability
Section 5 of title III of act Mar. 3, 1933, as temporarily renumbered §6 by
§10d. Clarification of Congressional intent regarding sections 10a and 10b(a)
In order to clarify the original intent of Congress, hereafter,
(Oct. 29, 1949, ch. 787, title VI, §633,
Amendments
1988—
Termination Date of 1988 Amendment
Amendment by
Ex. Ord. No. 10582. Uniform Procedures for Determinations
Ex. Ord. No. 10582, Dec. 17, 1954, 19 F.R. 8723, as amended by Ex. Ord. No. 11051, Sept. 27, 1962, 27 F.R. 9683; Ex. Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:
(b) For the purposes of the said act of March 3, 1933 [see Tables for classification], and the other laws referred to in the first paragraph of the preamble of this order, the bid or offered price of materials of domestic origin shall be deemed to be unreasonable, or the purchase of such materials shall be deemed to be inconsistent with the public interest, if the bid or offered price thereof exceeds the sum of the bid or offered price of like materials of foreign origin and a differential computed as provided in subsection (c) of this section.
(c) The executive agency concerned shall in each instance determine the amount of the differential referred to in subsection (b) of this section on the basis of one of the following-described formulas, subject to the terms thereof:
(1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin.
(2) The sum determined by computing ten per centum of the bid or offered price of materials of foreign origin exclusive of applicable duty and all costs incurred after arrival in the United States: provided that when the bid or offered price of materials of foreign origin amounts to less than $25,000, the sum shall be determined by computing ten per centum of such price exclusive only of applicable duty.
(a) To reject any bid or offer for reasons of the national interest not described or referred to in this order; or
(b) To place a fair proportion of the total purchases with small business concerns in accordance with section 302(b) of the Federal Property and Administrative Services Act of 1949, as amended [
(c) To reject a bid or offer to furnish material of foreign origin in any situation in which the domestic supplier offering the lowest price for furnishing the desired materials undertakes to produce substantially all of such materials in areas of substantial unemployment, as determined by the Secretary of Labor in accordance with such appropriate regulations as he may establish and during such period as the President may determine that it is in the national interest to provide to such areas preference in the award of Government contracts: Provided, that nothing in this section shall prevent the rejection of a bid or offered price which is excessive; or
(d) To reject any bid or offer for materials of foreign origin if such rejection is necessary to protect essential national-security interests after receiving advice with respect thereto from the President or from the Director of the Federal Emergency Management Agency. In providing this advice the Director shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differential than the procedures of this section generally prescribe is justified by consideration of national security.
Section Referred to in Other Sections
This section is referred to in title 15 section 5528.
§11. No contracts or purchases unless authorized or under adequate appropriation; report to the Congress
(a) No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the Department of Defense and in the Department of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year.
(b) The Secretary of Defense and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy shall immediately advise the Congress of the exercise of the authority granted in subsection (a) of this section, and shall report quarterly on the estimated obligations incurred pursuant to the authority granted in subsection (a) of this section.
(R.S. §3732; June 12, 1906, ch. 3078,
Codification
R.S. §3732 derived from act Mar. 2, 1861, ch. 84, §10,
Amendments
1996—Subsec. (a).
1984—Subsec. (a).
Subsec. (b).
1966—
1906—Act June 12, 1906, inserted "medical and hospital supplies".
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Repeals
The first proviso under the heading "
Cross References
Contracts for Indian supplies in advance of appropriations, see
Expenditure by any department in excess of appropriations prohibited, see
Printing appropriations not to be exceeded, see
Projects under Mexican treaties, authority to enter into contracts beyond amount appropriated, notwithstanding this section, see
Section Referred to in Other Sections
This section is referred to in title 8 section 1363a; title 10 section 2201; title 19 section 2081; title 22 section 277d–3; title 26 section 7608; title 33 section 891d; title 42 section 9619.
§11a. Contracts for fuel by Secretary of the Army without regard to current fiscal year
When, in the opinion of the Secretary of the Army, it is in the interest of the United States so to do, he is authorized to enter into contracts and to incur obligations for fuel in sufficient quantities to meet the requirements for one year without regard to the current fiscal year, and payments for supplies delivered under such contracts may be made from funds appropriated for the fiscal year in which the contract is made, or from funds appropriated or which may be appropriated for such supplies for the ensuing fiscal year.
(June 30, 1921, ch. 33, §1,
Codification
Section was formerly classified to
Change of Name
Department of War designated Department of the Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947, ch. 343, title II,
Transfer of Functions
For transfer of certain procurement and related functions and property, and functions relating to finance and fiscal matters, insofar as they pertain to Air Force, from Secretary of the Army to Secretary of the Air Force, see Secretary of Defense Transfer Order Nos. 6, eff. Jan. 15, 1948; 25, Oct. 14, 1948; 39, May 18, 1949; and 40 [App. B(93)], July 22, 1949.
Public Buildings Administration abolished by act June 30, 1949, ch. 288, title I, §103,
Public Buildings Branch of Procurement Division (Bureau of Federal Supply) of Treasury Department transferred to Public Buildings Administration within Federal Works Agency, see Reorg. Plan No. I of 1939, §§301, 303, eff. July 1, 1939, 4 F.R. 2729,
Functions of procurement of supplies, services, stores, etc., exercised by any other agency transferred to Procurement Division in Treasury Department by Ex. Ord. No. 6166, §1, June 10, 1933, set out as a note under
§12. No contract to exceed appropriation
No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose.
(R.S. §3733.)
Codification
R.S. §3733 derived from act July 25, 1868, ch. 233, §3,
Cross References
Contracting officer paying larger amount than specific appropriation, punishment for, see
Foreign military personnel, furnishing facilities for training of without regard to this section, see
Making of contracts for public buildings on partial appropriations, see
Projects under Mexican treaties, authority to enter into contracts beyond amount appropriated, notwithstanding this section, see
Section inapplicable to lease-purchase contracts, see
Section Referred to in Other Sections
This section is referred to in title 22 sections 277d–3, 2396; title 40 section 356.
§13. Contracts limited to one year
Except as otherwise provided, it shall not be lawful for any of the executive departments to make contracts for stationery or other supplies for a longer term than one year from the time the contract is made.
(R.S. §3735.)
Codification
R.S. §3735 derived from Res. Jan. 31, 1868, No. 8,
"Except as otherwise provided," was first inserted by the Revisers of the 1934 edition of the Code.
Exemption of Functions
Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30 F.R. 6635, set out as a note under
Section Inapplicable to Armed Services and National Aeronautics and Space Administration
Section inapplicable to procurement of supplies or services by Armed Services and National Aeronautics and Space Administration, see
Cross References
Contracts by Secretary of the Treasury for manufacture of distinctive paper for United States securities, see
General Services Administration, section inapplicable to procurement of property or services, see
Section Referred to in Other Sections
This section is referred to in
§13a. Repealed. Pub. L. 86–682, §12(c), Sept. 2, 1960, 74 Stat. 710
Section, Joint Res. Mar. 24, 1874, No. 6,
§14. Restriction on purchases of land
No land shall be purchased on account of the United States, except under a law authorizing such purchase.
(R.S. §3736.)
Codification
R.S. §3736 derived from act May 1, 1820, ch. 52, §7,
Cross References
Section inapplicable to lease-purchase contracts, see
Section Referred to in Other Sections
This section is referred to in title 40 section 356.
§15. Transfers of contracts; assignments; assignee not subject to reduction or setoff
(a) Transfer
No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States is concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States.
(b) Assignment
The provisions of subsection (a) of this section shall not apply in any case in which the moneys due or to become due from the United States or from any agency or department thereof, under a contract providing for payments aggregating $1,000 or more, are assigned to a bank, trust company, or other financing institution, including any Federal lending agency, provided:
(1) That, in the case of any contract entered into after October 9, 1940, no claim shall be assigned if it arises under a contract which forbids such assignment.
(2) That, unless otherwise expressly permitted by such contract, any such assignment shall cover all amounts payable under such contract and not already paid, shall not be made to more than one party, and shall not be subject to further assignment, except that any such assignment may be made to one party as agent or trustee for two or more parties participating in such financing.
(3) That, in the event of any such assignment, the assignee thereof shall file written notice of the assignment together with a true copy of the instrument of the assignment with—
(A) the contracting officer or the head of his department or agency;
(B) the surety or sureties upon the bond or bonds, if any, in connection with such contract; and
(C) the disbursing officer, if any, designated in such contract to make payment.
(c) Validity of assignment
Notwithstanding any law to the contrary governing the validity of assignments, any assignment pursuant to this section shall constitute a valid assignment for all purposes.
(d) Assignee liability
In any case in which moneys due or to become due under any contract are or have been assigned pursuant to this section, no liability of any nature of the assignor to the United States or any department or agency thereof, whether arising from or independently of such contract, shall create or impose any liability on the part of the assignee to make restitution, refund, or repayment to the United States of any amount heretofore since July 1, 1950, or hereafter received under the assignment.
(e) Amendment of contract
Any contract of the Department of Defense, the General Services Administration, the Department of Energy, or any other department or agency of the United States designated by the President, except any such contract under which full payment has been made, may, upon a determination of need by the President, provide or be amended without consideration to provide that payments to be made to the assignee of any moneys due or to become due under such contract shall not be subject to reduction or setoff. Each such determination of need shall be published in the Federal Register.
(f) Assignor liability arising independent of contract
If a provision described in subsection (e) of this section or a provision to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract, payments to be made thereafter to an assignee of any moneys due or to become due under such contract shall not be subject to reduction or setoff for any liability of any nature of the assignor to the United States or any department or agency thereof which arises independently of such contract, or hereafter for any liability of the assignor on account of—
(1) renegotiation under any renegotiation statute or under any statutory renegotiation article in the contract;
(2) fines;
(3) penalties (which term does not include amounts which may be collected or withheld from the assignor in accordance with or for failure to comply with the terms of the contract); or
(4) taxes, social security contributions, or the withholding or non withholding of taxes or social security contributions, whether arising from or independently of such contract.
(g) Accrued rights and obligations
Except as herein otherwise provided, nothing in this section shall be deemed to affect or impair rights or obligations heretofore accrued.
(R.S. §3737; Oct. 9, 1940, ch. 779, §1,
Codification
R.S. §3737 derived from act July 17, 1862, ch. 200, §14,
Amendments
1996—Subsec. (g).
1994—
Subsec. (a), designated first par. as subsec. (a) and substituted "is concerned" for "are concerned".
Subsec. (b), designated second par. as subsec. (b) and inserted subpar. and cl. designations; substituted in introductory provisions "provisions of subsection (a) of this section" for "provisions of the preceding paragraph" and "lending agency, provided:" for "lending agency: Provided,"; in par. designations, "That," for "That" and periods for semicolons at end; and struck out former par. 1 which read as follows: "That in the case of any contract entered into prior to October 9, 1940, no claim shall be assigned without the consent of the head of the department or agency concerned;".
Subsec. (c), designated third par. as subsec. (c) and substituted "this section" for "this section,".
Subsec. (d), designated fourth par. as subsec. (d).
Subsec. (e), designated first part of fifth par. as subsec. (e), substituted "Department of Energy" for "Atomic Energy Commission", "may, upon a determination of need by the President, provide" for "may, in time of war or national emergency proclaimed by the President (including the national emergency proclaimed December 16, 1950) or by Act or joint resolution of the Congress and until such war or national emergency has been terminated in such manner, provide", and "subject to reduction or set-off." for "subject to reduction or set-off,", and inserted "Each such determination of need shall be published in the Federal Register."
Subsec. (f), designated last part of fifth par. as subsec. (f), realigned margins of pars. (1) to (4) and substituted semicolons for commas at end, and substituted, in introductory provisions, "If a provision described in subsection (e) of this section or a provision to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract, payments to be made thereafter to an assignee of any moneys due or to become due under such contract shall not be subject to reduction or setoff for any liability of any nature of the assignor to the United States or any department or agency thereof which arises independently of such contract, or hereafter for any liability of the assignor on account of—" for "and if such provision or one to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract, payments to be made thereafter to an assignee of any moneys due or to become due under such contract, whether during or after such war or emergency, shall not be subject to reduction or set-off for any liability of any nature of the assignor to the United States or any department or agency thereof which arises independently of such contract, or hereafter for any liability of the assignor on account of" and, in par. (4), "non withholding" for "nonwithholding".
Subsec. (g), designated sixth par. as subsec. (g).
1951—Act May 15, 1951, made it clear that a bank or other financing institution taking an assignment of claims pursuant to this section would not be subject to later recovery by the Government of amounts previously paid to the bank by the assignee except in cases of fraud.
1940—Act Oct. 9, 1940, inserted second and third pars.
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Delegation of Authority
Memorandum of President of the United States, Oct. 3, 1995, 60 F.R. 52289, provided:
Memorandum for the Heads of Executive Departments and Agencies
Section 2451 of the Federal Acquisition Streamlining Act of 1994,
By the authority vested in me as President by the Constitution and the laws of the United States of America, including
The authority delegated by this memorandum may be further delegated within the departments and agencies.
This memorandum shall be published in the Federal Register.
William J. Clinton.
Non-Applicability of National Emergencies Act
The provisions of the National Emergencies Act (
Moneys Due Under Letters of Commitment Issued in Connection With Disposition of Surplus Agricultural Commodities
Moneys due under letters of commitment issued against funds or guaranties of funds supplied by Commodity Credit Corporation in connection with disposition of surplus agricultural commodities to foreign countries, as assignable under the Assignment of Claims Act of 1940, which constitutes this section and former
Cross References
Assignment of claims, generally, see
Section Referred to in Other Sections
This section is referred to in title 22 section 2392; title 50 section 1651; title 50 App. section 1215.
§16. Repealed. Oct. 21, 1941, ch. 452, 55 Stat. 743
Section, R.S. §3744; acts June 15, 1917, ch. 29,
§§16a to 16d. Omitted
Codification
Section 16a, acts June 25, 1910, ch. 431, §23,
Section 16b, acts Apr. 17, 1936, ch. 233,
Section 16c, act May 13, 1926, ch. 294,
Section 16d, act Aug. 4, 1939, ch. 418, §13,
§§17 to 19. Repealed. Oct. 21, 1941, ch. 452, 55 Stat. 743
Section 17, R.S. §3745, provided that an affidavit be affixed to the return of contract required by
Section 18, R.S. §3746, provided punishment for failure to make returns of contracts as required by
Section 19, R.S. §3747, imposed duty on Secretaries of War, Navy, and Interior to furnish officers with letters of instruction relating to their duties under sections 17 and 18, contract forms, and affidavits, to insure uniformity.
§20. Repealed. Pub. L. 103–355, title II, §2452, Oct. 13, 1994, 108 Stat. 3326
Section, R.S. §3743; Feb. 27, 1877, ch. 69,
Effective Date of Repeal
For effective date and applicability of repeal, see section 10001 of
§§20a, 20b. Repealed. Pub. L. 104–106, div. D, title XLIII, §4321(i)(10), (11), Feb. 10, 1996, 110 Stat. 676
Section 20a, act June 15, 1940, ch. 367,
Section 20b, act Nov. 28, 1943, ch. 328,
Effective Date of Repeal
For effective date and applicability of repeal, see section 4401 of
§21. Repealed. Pub. L. 97–258, §5(b), Sept. 13, 1982, 96 Stat. 1069
Section, acts July 31, 1894, ch. 174, §22,
§22. Interest of Member of Congress
No Member of Congress shall be admitted to any share or part of any contract or agreement made, entered into, or accepted by or on behalf of the United States, or to any benefit to arise thereupon. The provisions of this section shall not apply to any contracts or agreements heretofore or hereafter entered into under the Agricultural Adjustment Act [
(R.S. §3741; Feb. 27, 1877, ch. 69, §1,
References in Text
The Agricultural Adjustment Act, referred to in text, is title I of act May 12, 1933, ch. 25,
The Federal Farm Loan Act, referred to in text, is act July 17, 1916, ch. 245,
The Emergency Farm Mortgage Act of 1933, referred to in text, is title II of act May 12, 1933, ch. 25,
The Federal Farm Mortgage Corporation Act, referred to in text, is act Jan. 31, 1934, ch. 7,
The Farm Credit Act of 1933, referred to in text, is act June 16, 1933, ch. 98,
The Home Owners' Loan Act of 1933, referred to in text, is act June 13, 1933, ch. 64,
Codification
R.S. §3741 derived from act Apr. 21, 1808, ch. 48, §3,
First sentence of section is based on R.S. §3741, as amended, and second sentence is based on act Jan. 25, 1934, ch. 5, as amended and as applicable to R.S. §3741.
Amendments
1996—
1994—
1937—Act Aug. 26, 1937, inserted provision at end of second sentence beginning with "and shall not apply".
1934—Act June 27, 1934, inserted in second sentence ", the Federal Farm Loan Act, the Emergency Farm Mortgage Act of 1933, the Federal Farm Mortgage Corporation Act, the Farm Credit Act of 1933, and the Home Owners' Loan Act of 1933".
Act Jan. 25, 1934, added second sentence providing that this section shall not apply to any contracts or agreements heretofore or hereafter entered into under the Agricultural Adjustment Act.
1877—Act Feb. 27, 1877, inserted "or Delegate to" after "that no Member of" in first sentence.
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Cross References
Contracts by Members of Congress and exemptions with respect to certain contracts, see
Section Referred to in Other Sections
This section is referred to in title 7 sections 1386, 1514; title 8 section 1363a; title 10 section 2343; title 15 section 714l; title 19 section 2081; title 22 sections 1472, 2676; title 26 section 7608; title 33 section 702m.
§23. Orders or contracts for material placed with Government-owned establishments deemed obligations
All orders or contracts for work or material or for the manufacture of material pertaining to approved projects heretofore or hereafter placed with Government-owned establishments shall be considered as obligations in the same manner as provided for similar orders or contracts placed with commercial manufacturers or private contractors, and the appropriations shall remain available for the payment of the obligations so created as in the case of contracts or orders with commercial manufacturers or private contractors.
(June 5, 1920, ch. 240,
Codification
Section is a composite of acts June 5, 1920, ch. 240, and July 1, 1922, ch. 259. The words "for work or material" after "All orders or contracts", "or contracts" after "similar orders", and "or private contractors" after "commercial manufacturers" in two places are based on act July 1, 1922.
Amendments
1937—Act June 2, 1937, continued this section in effect.
§24. Contracts for transportation of moneys, bullion, coin, and securities
Whenever it is practicable contracts for the transportation of moneys, bullion, coin, notes, bonds, and other securities of the United States, and paper shall be let to the lowest responsible bidder therefor, after notice to all parties having means of transportation.
(July 7, 1884, ch. 332,
Codification
Section is from Sundry Civil Appropriation Act July 7, 1884, fiscal year 1885.
§24a. Omitted
Codification
Section, acts June 16, 1933, ch. 101, §5,
§25. Repealed. Feb. 19, 1948, ch. 65, §11(a), 62 Stat. 25
Section, R.S. §3729, related to contracts for bunting. See
§26. Repealed. June 30, 1949, ch. 288, title VI, §602(a)(26), formerly title V, §502(a)(26), 63 Stat. 401 ; renumbered Sept. 5, 1950, ch. 849, §6(a), (b), 64 Stat. 583
Section, acts Mar. 4, 1915, ch. 147, §5,
Effective Date of Repeal
Repeal effective July 1, 1949, see section 605 of act June 30, 1949.
§27. Repealed. Oct. 31, 1951, ch. 654, §1(109), 65 Stat. 705
Section, act June 5, 1920, ch. 235, §7,
§§28 to 34. Omitted
Codification
Section 28, act June 16, 1934, ch. 553, §1,
Section 29, act June 16, 1934, ch. 553, §2,
Section 30, act June 16, 1934, ch. 553, §3,
Section 31, act June 16, 1934, ch. 553, §4,
Section 32, act June 16, 1934, ch. 553, §5,
Section 33, act June 16, 1934, ch. 553, §6,
Section 34, act Aug. 29, 1935, ch. 815,
§35. Contracts for materials, etc., exceeding $10,000; representations and stipulations
In any contract made and entered into by any executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States (all the foregoing being hereinafter designated as agencies of the United States), for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000, there shall be included the following representations and stipulations:
(a) That all persons employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract will be paid, without subsequent deduction or rebate on any account, not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under said contract;
(b) That no person employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract shall be permitted to work in excess of forty hours in any one week: Provided, That the provisions of this subsection shall not apply to any employer who shall have entered into an agreement with his employees pursuant to the provisions of paragraphs (1) or (2) of subsection (b) of
(c) That no male person under sixteen years of age and no female person under eighteen years of age and no convict labor will be employed by the contractor in the manufacture or production or furnishing of any of the materials, supplies, articles, or equipment included in such contract, except that this section, or any other law or Executive order containing similar prohibitions against purchase of goods by the Federal Government, shall not apply to convict labor which satisfies the conditions of
(d) That no part of such contract will be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima-facie evidence of compliance with this subsection.
(June 30, 1936, ch. 881, §1,
Amendments
1994—Subsecs. (a) to (e).
1985—Subsec. (c).
1979—Subsec. (d).
1942—Subsec. (c). Act May 13, 1942, inserted proviso.
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Effective Date of 1985 Amendment
Section 1241(c) of
Short Title
Section 14, formerly section 12, of act June 30, 1936, as added by
Exemptions to Federal Restrictions on Marketability of Prison Made Goods
Provisions of this section creating exemptions to Federal regulations on marketability of prison made goods are not applicable unless representatives of local union central bodies or similar labor union organizations have been consulted prior to the initiation of any project qualifying of any exemption created by this section and such paid inmate employment will not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services, see section 819(c) of
Exceptions and Exemptions
7 F.R. 9399 (amending Exemption Order Apr. 21, 1942, 7 F.R. 3003), which exempted female persons under 18 years of age from the provisions of subsec. (d) of this section, was superseded by 10 F.R. 10438.
Contracting Authority of Government Agencies in Connection With National Defense Functions
Provisions of
Ex. Ord. No. 13126. Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor
Ex. Ord. No. 13126, June 12, 1999, 64 F.R. 32383, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to continue the executive branch's commitment to fighting abusive child labor practices, it is hereby ordered as follows:
(a) Required Solicitation Provisions. Each solicitation of offers for a contract for the procurement of a product included on the list published under section 2 of this order shall include the following provisions:
(1) A provision that requires the contractor to certify to the contracting officer that the contractor or, in the case of an incorporated contractor, a responsible official of the contractor has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract and that, on the basis of those efforts, the contractor is unaware of any such use of child labor; and
(2) A provision that obligates the contractor to cooperate fully in providing reasonable access to the contractor's records, documents, persons, or premises if reasonably requested by authorized officials of the contracting agency, the Department of the Treasury, or the Department of Justice, for the purpose of determining whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract.
(b) Investigations. Whenever a contracting officer of an executive agency has reason to believe that forced or indentured child labor was used to mine, produce, or manufacture a product furnished pursuant to a contract subject to the requirements of subsection 3(a) of this order, the head of the executive agency shall refer the matter for investigation to the Inspector General of the executive agency and, as the head of the executive agency or the Inspector General determines appropriate, to the Attorney General and the Secretary of the Treasury.
(c) Remedies.
(1) The head of an executive agency may impose remedies as provided in this subsection in the case of a contractor under a contract of the executive agency if the head of the executive agency finds that the contractor:
(i) Has furnished under the contract products that have been mined, produced, or manufactured by forced or indentured child labor or uses forced or indentured child labor in the mining, production, or manufacturing operations of the contractor;
(ii) Has submitted a false certification under subsection 3(a)(1) of this order; or
(iii) Has failed to cooperate in accordance with the obligation imposed pursuant to subsection 3(a)(2) of this order.
(2) The head of an executive agency, in his or her sole discretion, may terminate a contract on the basis of any finding described in subsection 3(c)(1) of this order for any contract entered into after the date the regulation called for in section 3 of this order is published in final.
(3) The head of an executive agency may debar or suspend a contractor from eligibility for Federal contracts on the basis of a finding that the contractor has engaged in an act described in subsection 3(c)(1) of this order. The provision for debarment may not exceed 3 years.
(4) The Administrator of General Services shall include on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs (maintained by the Administrator as described in the Federal Acquisition Regulation) each party that is debarred, suspended, proposed for debarment or suspension, or declared ineligible by the head of an agency on the basis that the person has engaged in an act described in subsection 3(c)(1) of this order.
(5) This section shall not be construed to limit the use of other remedies available to the head of an executive agency or any other official of the Federal Government on the basis of a finding described in subsection 3(c)(1) of this order.
(b) This order does not apply to a contract that is for the procurement of any product, or any article, material, or supply contained in a product that is mined, produced, or manufactured in any foreign country if:
(1) the foreign country is a party to the Agreement on Government Procurement annexed to the WTO Agreement or a party to the North American Free Trade Agreement ("NAFTA"); and
(2) the contract is of a value that is equal to or greater than the United States threshold specified in the Agreement on Government Procurement annexed to the WTO Agreement or NAFTA, whichever is applicable.
(b) "WTO Agreement" means the Agreement Establishing the World Trade Organization, entered into on April 15, 1994.
(c) "Forced or indentured child labor" means all work or service (1) exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or (2) performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties.
William J. Clinton.
Act Referred to in Other Sections
The Walsh-Healey Act is referred to in
Section Referred to in Other Sections
This section is referred to in
§36. Liability for contract breach; cancellation; completion by Government agency; employee's wages
Any breach or violation of any of the representations and stipulations in any contract for the purposes set forth in
(June 30, 1936, ch. 881, §2,
Cross References
Conduct and argument of cases by Attorney General, see
Power of Solicitor General to assist Attorney General, see
Section Referred to in Other Sections
This section is referred to in
§37. Distribution of list of persons breaching contract; future contracts prohibited
The Comptroller General is authorized and directed to distribute a list to all agencies of the United States containing the names of persons or firms found by the Secretary of Labor to have breached any of the agreements or representations required by
(June 30, 1936, ch. 881, §3,
Cross References
Exemptions and exceptions to
Section Referred to in Other Sections
This section is referred to in
§38. Administration of Walsh-Healey provisions; officers and employees; appointment; investigations; rules and regulations
The Secretary of Labor is authorized and directed to administer the provisions of
(June 30, 1936, ch. 881, §4,
Codification
Provisions of second sentence of this section that authorized the Secretary to appoint an administrative officer and such attorneys and experts "without regard to the provisions of the civil service laws" were omitted as obsolete. Such appointments are subject to the civil service laws unless specifically excepted by such laws or by laws enacted subsequent to Executive Order 8743, Apr. 23, 1941, issued by the President pursuant to the Act of Nov. 26, 1940, ch. 919, title I, §1,
"
Amendments
1949—Act Oct. 28, 1949, substituted "Classification Act of 1949" for "Classification Act of 1923".
Repeals
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by
Transfer of Functions
For transfer of functions of all other officers, employees, and agencies of Department of Labor, with certain exceptions, to Secretary of Labor, with power to delegate, see Reorg. Plan No. 6 of 1950, §§1, 2, eff. May 24, 1950, 15 F.R. 3174,
Cross References
Exemptions and exceptions to
Section Referred to in Other Sections
This section is referred to in
§39. Hearings on Walsh-Healey provisions by Secretary of Labor; witness fees; failure to obey order; punishment
Upon his own motion or on application of any person affected by any ruling of any agency of the United States in relation to any proposal or contract involving any of the provisions of
(June 30, 1936, ch. 881, §5,
Codification
As originally enacted, the words ", or the district court of the United States for the District of Columbia," were set out following "Territory or possession". Act June 25, 1948, as amended by act May 24, 1949, substituted "United States District Court for the District of Columbia" for "district court of the United States for the District of Columbia". The words "United States District Court for the District of Columbia" have been deleted entirely as superfluous in view of
Federal Rules of Civil Procedure
Findings by the Court, see rule 52, Title 28, Appendix, Judiciary and Judicial Procedure.
Subpoena, see rule 45.
Federal Rules of Criminal Procedure
Contempt, see rule 42, Title 18, Appendix, Crimes and Criminal Procedure.
Subpoena, see rule 17.
Cross References
Criminal contempt, see
Exemptions and exceptions to
Per diem and mileage of witnesses, see
Section Referred to in Other Sections
This section is referred to in
§40. Exceptions from Walsh-Healey provisions; modification of contracts; variations; overtime; suspension of representations and stipulations
Upon a written finding by the head of the contracting agency or department that the inclusion in the proposal or contract of the representations or stipulations set forth in
(June 30, 1936, ch. 881, §6,
Amendments
1940—Act June 28, 1940, inserted proviso.
Section Referred to in Other Sections
This section is referred to in title 25 section 450j.
§41. "Person" defined in Walsh-Healey provisions
Whenever used in
(June 30, 1936, ch. 881, §7,
Amendments
1978—
Effective Date of 1978 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§42. Effect of Walsh-Healey provisions on other laws
The provisions of
(June 30, 1936, ch. 881, §8,
References in Text
The Buy American Act, referred to in text, is title III of act Mar. 3, 1933, ch. 212,
Act approved March 3, 1931 (commonly known as the Bacon-Davis Act), referred to in text, probably means act Mar. 3, 1931, ch. 411,
The National Industrial Recovery Act, referred to in text, is act June 16, 1933, ch. 90,
Section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935, referred to in text, is act Apr. 8, 1935, ch. 48, §7,
Codification
"
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§43. Walsh-Healey provisions not applicable to certain contracts
(June 30, 1936, ch. 881, §9,
References in Text
The Communications Act of 1934, referred to in text, is act June 19, 1934, ch. 652,
Section Referred to in Other Sections
This section is referred to in
§43a. Administrative procedure provisions
(a) Applicability
Notwithstanding any provision of
(b) Wage determination; administrative review
All wage determinations under
(c) Judicial review
Notwithstanding the inclusion of any stipulations required by any provision of
(June 30, 1936, ch. 881, §10, as added June 30, 1952, ch. 530, title III, §301,
Codification
"
Prior Provisions
A prior section 10 of act June 30, 1936, was renumbered section 12, and is classified to
Amendments
1996—Subsec. (b).
Subsec. (c).
1994—Subsec. (b).
Subsec. (c).
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Section Referred to in Other Sections
This section is referred to in title 25 section 450j.
§43b. Manufacturers and regular dealers
(a) The Secretary of Labor may prescribe in regulations the standards for determining whether a contractor is a manufacturer of or a regular dealer in materials, supplies, articles, or equipment to be manufactured or used in the performance of a contract entered into by any executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States, for the manufacture or furnishing of materials, supplies, articles, and equipment.
(b) Any interested person shall have the right of judicial review of any legal question regarding the interpretation of the terms "regular dealer" and "manufacturer", as defined pursuant to subsection (a) of this section.
(June 30, 1936, ch. 881, §11, as added
Prior Provisions
A prior section 11 of act June 30, 1936, was renumbered section 12, and is classified to
Another prior section 11 of act June 30, 1936, was renumbered section 13, and is classified to
Amendments
1996—
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date
For effective date and applicability of section, see section 10001 of
§44. Separability of Walsh-Healey provisions
If any provision of
(June 30, 1936, ch. 881, §12, formerly §10,
Prior Provisions
A prior section 12 of act June 30, 1936, was renumbered section 13, and is classified to
Another prior section 12 of act June 30, 1936, was renumbered section 14, and is set out as a Short Title note under
Section Referred to in Other Sections
This section is referred to in title 25 section 450j.
§45. Effective date of Walsh-Healey provisions; exception as to representations with respect to minimum wages
(June 30, 1936, ch. 881, §13, formerly §11,
Section Referred to in Other Sections
This section is referred to in
§46. Committee for Purchase From People Who Are Blind or Severely Disabled
(a) Establishment
There is established a committee to be known as the Committee for Purchase From People Who Are Blind or Severely Disabled (hereafter in
(1) The President shall appoint as a member one officer or employee from each of the following: The Department of Agriculture, the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the Department of Health and Human Services, the Department of Commerce, the Department of Veterans Affairs, the Department of Justice, the Department of Labor, and the General Services Administration. The head of each such department and agency shall nominate one officer or employee in his department or agency for appointment under this paragraph.
(2)(A) The President shall appoint one member from persons who are not officers or employees of the Government and who are conversant with the problems incident to the employment of the blind.
(B) The President shall appoint one member from persons who are not officers or employees of the Government and who are conversant with the problems incident to the employment of other severely handicapped individuals.
(C) The President shall appoint one member from persons who are not officers or employees of the Government and who represent blind individuals employed in qualified nonprofit agencies for the blind.
(D) The President shall appoint one member from persons who are not officers or employees of the Government and who represent severely handicapped individuals (other than blind individuals) employed in qualified nonprofit agencies for other severely handicapped individuals.
(b) Vacancy
A vacancy in the membership of the Committee shall be filled in the manner in which the original appointment was made.
(c) Chairman
The members of the Committee shall elect one of their number to be Chairman.
(d) Terms
(1) Except as provided in paragraphs (2), (3), and (4), members appointed under paragraph (2) of subsection (a) of this section shall be appointed for terms of five years. Any member appointed to the Committee under such paragraph may be reappointed to the Committee if he meets the qualifications prescribed by that paragraph.
(2) Of the members first appointed under paragraph (2) of subsection (a) of this section—
(A) one shall be appointed for a term of three years,
(B) one shall be appointed for a term of four years, and
(C) one shall be appointed for a term of five years,
as designated by the President at the time of appointment.
(3) Any member appointed under paragraph (2) of subsection (a) of this section to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed only for the remainder of such term. A member appointed under such paragraph may serve after the expiration of his term until his successor has taken office.
(4) The member first appointed under paragraph (2)(B) of subsection (a) of this section shall be appointed for a term of three years.
(e) Pay and travel expenses
(1) Except as provided in paragraph (2), members of the Committee shall each be entitled to receive the daily equivalent of the annual rate of basic pay in effect for grade GS–18 of the General Schedule for each day (including traveltime) during which they are engaged in the actual performance of services for the Committee.
(2) Members of the Committee who are officers or employees of the Government shall receive no additional pay on account of their service on the Committee.
(3) While away from their homes or regular places of business in the performance of services for the Committee, members of the Committee shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703(b) 1 of title 5.
(f) Staff
(1) Subject to such rules as may be adopted by the Committee, the Chairman may appoint and fix the pay of such personnel as the Committee determines are necessary to assist it in carrying out its duties and powers under
(2) Upon request of the Committee, the head of any entity of the Government is authorized to detail, on a reimbursable basis, any of the personnel of such entity to the Committee to assist it in carrying out its duties and powers under
(3) The staff of the Committee appointed under paragraph (1) shall be appointed subject to the provisions of title 5 governing appointments in the competitive service, and shall be paid in accordance with the provisions of
(g) Obtaining official data
The Committee may secure directly from any entity of the Government information necessary to enable it to carry out
(h) Administrative support services
The Administrator of General Services shall provide to the Committee on a reimbursable basis such administrative support services as the Committee may request.
(i) Annual report
The Committee shall, not later than December 31 of each year, transmit to the President and to the Congress a report which shall include the names of the Committee members serving in the preceding fiscal year, the dates of Committee meetings in that year, a description of its activities under
(June 25, 1938, ch. 697, §1,
References in Text
Amendments
1993—Subsec. (a).
1992—Subsec. (a).
1991—Subsec. (a)(1).
1976—Subsec. (i).
1974—Subsec. (a).
Subsec. (a)(2).
Subsec. (d)(1).
Subsec. (d)(4).
1971—
Change of Name
"Department of Health and Human Services" substituted for "Department of Health, Education, and Welfare" in subsec. (a)(1) pursuant to section 509(b) of
Effective Date of 1971 Amendment
Section 2 of
Short Title
Section 7 of act June 25, 1938, as added by
References in Other Laws to GS–16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of
Act Referred to in Other Sections
The Javits-Wagner-O'Day Act is referred to in
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§47. Duties and powers of the Committee
(a) Procurement list: publication in Federal Register; additions and removals
(1) The Committee shall establish and publish in the Federal Register a list (hereafter in
(A) the commodities produced by any qualified nonprofit agency for the blind or by any qualified nonprofit agency for other severely handicapped, and
(B) the services provided by any such agency,
which the Committee determines are suitable for procurement by the Government pursuant to
(2) The Committee may, by rule made in accordance with the requirements of subsections (b), (c), (d), and (e) of
(b) Fair market price; price revisions
The Committee shall determine the fair market price of commodities and services which are contained on the procurement list and which are offered for sale to the Government by any qualified nonprofit agency for the blind or any such agency for other severely handicapped. The Committee shall also revise from time to time in accordance with changing market conditions its price determinations with respect to such commodities and services.
(c) Central nonprofit agency; designation
The Committee shall designate a central nonprofit agency or agencies to facilitate the distribution (by direct allocation, subcontract, or any other means) of orders of the Government for commodities and services on the procurement list among qualified nonprofit agencies for the blind or such agencies for other severely handicapped.
(d) Rules and regulations; blind-made products, priority
(1) The Committee may make rules and regulations regarding (A) specifications for commodities and services on the procurement list, (B) the time of their delivery, and (C) such other matters as may be necessary to carry out the purposes of
(2) The Committee shall prescribe regulations providing that—
(A) in the purchase by the Government of commodities produced and offered for sale by qualified nonprofit agencies for the blind or such agencies for other severely handicapped, priority shall be accorded to commodities produced and offered for sale by qualified nonprofit agencies for the blind, and
(B) in the purchase by the Government of services offered by nonprofit agencies for the blind or such agencies for other severely handicapped, priority shall, until the end of the calendar year ending December 31, 1976, be accorded to services offered for sale by qualified nonprofit agencies for the blind.
(e) Problems and production methods; study and evaluation
The Committee shall make a continuing study and evaluation of its activities under
(June 25, 1938, ch. 697, §2,
Amendments
1971—
Effective Date of 1971 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§48. Procurement requirements for the Government; nonapplication to prison-made products
If any entity of the Government intends to procure any commodity or service on the procurement list, that entity shall, in accordance with rules and regulations of the Committee, procure such commodity or service, at the price established by the Committee, from a qualified nonprofit agency for the blind or such an agency for other severely handicapped if the commodity or service is available within the period required by that Government entity; except that this section shall not apply with respect to the procurement of any commodity which is available for procurement from an industry established under
(June 25, 1938, ch. 697, §3,
Amendments
1971—
Effective Date of 1971 Amendment
Amendment by
§48a. Audit
The Comptroller General of the United States, or any of his duly authorized representatives, shall have access, for the purpose of audit and examination, to any books, documents, papers, and other records of the Committee and of each agency designated by the Committee under
(June 25, 1938, ch. 697, §4, as added
Effective Date
Section effective Aug. 1, 1971, see section 2 of
§48b. Definitions
For purposes of
(1) The term "blind" refers to an individual or class of individuals whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses or whose visual acuity, if better than 20/200, is accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle of no greater than 20 degrees.
(2) The terms "other severely handicapped" and "severely handicapped individuals" mean an individual or class of individuals under a physical or mental disability, other than blindness, which (according to criteria established by the Committee after consultation with appropriate entities of the Government and taking into account the views of non-Government entities representing the handicapped) constitutes a substantial handicap to employment and is of such a nature as to prevent the individual under such disability from currently engaging in normal competitive employment.
(3) The term "qualified nonprofit agency for the blind" means an agency—
(A) organized under the laws of the United States or of any State, operated in the interest of blind individuals, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;
(B) which complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
(C) which in the production of commodities and in the provision of services (whether or not the commodities or services are procured under
(4) The term "qualified nonprofit agency for other severely handicapped" means an agency—
(A) organized under the laws of the United States or of any State, operated in the interest of severely handicapped individuals who are not blind, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;
(B) which complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
(C) which in the production of commodities and in the provision of services (whether or not the commodities or services are procured under
(5) The term "direct labor" includes all work required for preparation, processing, and packing of a commodity, or work directly relating to the performance of a service, but not supervision, administration, inspection, or shipping.
(6) The term "fiscal year" means the twelve-month period beginning on October 1 of each year.
(7) The terms "Government" and "entity of the Government" include any entity of the legislative branch or the judicial branch, any executive agency or military department (as such agency and department are respectively defined by
(8) The term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territory of the Pacific Islands.
(June 25, 1938, ch. 697, §5, as added
Amendments
1976—
1974—
Effective Date
Section effective Aug. 1, 1971, see section 2 of
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
Section Referred to in Other Sections
This section is referred to in title 10 section 2410d; title 40 section 481.
§48c. Authorization of appropriations
There are authorized to be appropriated to the Committee to carry out
(June 25, 1938, ch. 697, §6, as added
Amendments
1974—
1973—
Effective Date
Section effective Aug. 1, 1971, see section 2 of
Section Referred to in Other Sections
This section is referred to in
§49. Defense employment; honorable discharge from land and naval forces as equivalent to birth certificate
No defense contractor shall deny employment, on account of failure to produce a birth certificate, to any person who submits, in lieu of a birth certificate, an honorable discharge certificate or certificate issued in lieu thereof from the Army, Air Force, Navy, Marine Corps, or Coast Guard of the United States, unless such honorable discharge certificate shows on its face that such person may have been an alien at the time of its issuance.
(June 22, 1942, ch. 432, §1,
Change of Name
Air Force inserted in text under authority of section 207(a), (f) of act July 26, 1947, ch. 343, title II,
Section Referred to in Other Sections
This section is referred to in
§50. "Defense contractor" defined
As used in
(1) the production, maintenance, or storage of arms, armament, ammunition, implements of war, munitions, machinery, tools, clothing, food, fuel, or any articles or supplies, or parts or ingredients of any articles or supplies; or
(2) the construction, reconstruction, repair, or installation of a building, plant, structure, or facility;
under a contract with the United States or under any contract which the President, the Secretary of the Army, the Secretary of the Air Force, the Secretary of the Navy, or the Secretary of Transportation certifies to such employer to be necessary to the national defense.
(June 22, 1942, ch. 432, §2,
Amendments
1981—
Change of Name
Secretary of the Air Force inserted in text under authority of section 207(a), (f) of act July 26, 1947, ch. 343, title II,
§51. Short title
(Mar. 8, 1946, ch. 80, §1,
Amendments
1986—
1960—
Effective Date of 1986 Amendment
Section 3 of
"(a) Except as provided in subsection (b), the Anti-Kickback Act of 1986 (as set out in section 2(a)) [
"(b) Subsections (a) and (b) of section 7 of the Anti-Kickback Act of 1986 (as set out in section 2(a)) [section 57(a) and (b) of this title] shall take effect with respect to contract solicitations issued by an agency, department, or other establishment of the Federal Government on or after the date which is 90 days after the date of the enactment of this Act [Nov. 7, 1986]."
Short Title of 1986 Amendment
Section 1 of
Section Referred to in Other Sections
This section is referred to in
§52. Definitions
As used in
(1) The term "contracting agency", when used with respect to a prime contractor, means any department, agency, or establishment of the United States which enters into a prime contract with a prime contractor.
(2) The term "kickback" means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any prime contractor, prime contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract.
(3) The term "person" means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.
(4) The term "prime contract" means a contract or contractual action entered into by the United States for the purpose of obtaining supplies, materials, equipment, or services of any kind.
(5) The term "prime contractor" means a person who has entered into a prime contract with the United States.
(6) The term "prime contractor employee" means any officer, partner, employee, or agent of a prime contractor.
(7) The term "subcontract" means a contract or contractual action entered into by a prime contractor or subcontractor for the purpose of obtaining supplies, materials, equipment, or services of any kind under a prime contract.
(8) The term "subcontractor"—
(A) means any person, other than the prime contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract; and
(B) includes any person who offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor.
(9) The term "subcontractor employee" means any officer, partner, employee, or agent of a subcontractor.
(Mar. 8, 1946, ch. 80, §2,
Amendments
1986—
1960—
Effective Date of 1986 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§53. Prohibited conduct
It is prohibited for any person—
(1) to provide, attempt to provide, or offer to provide any kickback;
(2) to solicit, accept, or attempt to accept any kickback; or
(3) to include, directly or indirectly, the amount of any kickback prohibited by clause (1) or (2) in the contract price charged by a subcontractor to a prime contractor or a higher tier subcontractor or in the contract price charged by a prime contractor to the United States.
(Mar. 8, 1946, ch. 80, §3,
Amendments
1986—
1960—
Effective Date of 1986 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§54. Criminal penalties
Any person who knowingly and willfully engages in conduct prohibited by
(Mar. 8, 1946, ch. 80, §4,
Amendments
1986—
1960—
Effective Date of 1986 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§55. Civil actions
(a)(1) The United States may, in a civil action, recover a civil penalty from any person who knowingly engages in conduct prohibited by
(A) twice the amount of each kickback involved in the violation; and
(B) not more than $10,000 for each occurrence of prohibited conduct.
(2) The United States may, in a civil action, recover a civil penalty from any person whose employee, subcontractor or subcontractor employee violates
(b) A civil action under this section shall be barred unless the action is commenced within 6 years after the later of (1) the date on which the prohibited conduct establishing the cause of action occurred, and (2) the date on which the United States first knew or should reasonably have known that the prohibited conduct had occurred.
(Mar. 8, 1946, ch. 80, §5, as added
Effective Date
Section effective with respect to conduct described in
Section Referred to in Other Sections
This section is referred to in
§56. Administrative offsets
(a) Offset authority
A contracting officer of a contracting agency may offset the amount of a kickback provided, accepted, or charged in violation of
(b) Duties of prime contractor
(1) Upon direction of a contracting officer of a contracting agency with respect to a prime contract, the prime contractor shall withhold from any sums owed to a subcontractor under a subcontract of the prime contract the amount of any kickback which was or may be offset against that prime contractor under subsection (a) of this section.
(2) Such contracting officer may order that sums withheld under paragraph (1)—
(A) be paid over to the contracting agency; or
(B) if the United States has already offset the amount of such sums against that prime contractor, be retained by the prime contractor.
(3) The prime contractor shall notify the contracting officer when an amount is withheld and retained under paragraph (2)(B).
(c) Claim of Government
An offset under subsection (a) of this section or a direction or order of a contracting officer under subsection (b) of this section is a claim by the Government for the purposes of the Contract Disputes Act of 1978 [
(d) "Contracting officer" defined
As used in this section, the term "contracting officer" has the meaning given that term for the purposes of the Contract Disputes Act of 1978 [
(Mar. 8, 1946, ch. 80, §6, as added
References in Text
The Contract Disputes Act of 1978, referred to in subsecs. (c) and (d), is
Effective Date
Section effective with respect to conduct described in
Section Referred to in Other Sections
This section is referred to in
§57. Contractor responsibilities
(a) Procedural requirements for prevention and detection of violations
Each contracting agency shall include in each prime contract awarded by such agency a requirement that the prime contractor shall have in place and follow reasonable procedures designed to prevent and detect violations of
(b) Cooperation in investigations requirement
Each contracting agency shall include in each prime contract awarded by such agency a requirement that the prime contractor shall cooperate fully with any Federal Government agency investigating a violation of
(c) Reporting requirement; supplying information as favorable evidence of responsibility
(1)(A) Whenever a prime contractor or subcontractor has reasonable grounds to believe that a violation of
(B) A contractor shall make the reports required by subparagraph (A) to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Department of Justice.
(2) In the case of an administrative or contractual action to suspend or debar any person who is eligible to enter into contracts with the Federal Government, evidence that such person has supplied information to the United States pursuant to paragraph (1) shall be favorable evidence of such person's responsibility for the purposes of Federal procurement laws and regulations.
(d) Partial inapplicability to small contracts
Subsections (a) and (b) of this section do not apply to a prime contract that is not greater than $100,000 or to a prime contract for the acquisition of commercial items (as defined in
(e) Cooperation in investigations regardless of contract amount
Notwithstanding subsection (d) of this section, a prime contractor shall cooperate fully with any Federal Government agency investigating a violation of
(Mar. 8, 1946, ch. 80, §7, as added
Amendments
1996—Subsec. (d).
1994—Subsec. (d).
Subsec. (e).
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Effective Date
Subsecs. (a) and (b) effective with respect to contract solicitations issued by an agency, department, or other establishment of the Federal Government on or after the date which is 90 days after Nov. 7, 1986, and subsec. (c) effective with respect to conduct described in
Section Referred to in Other Sections
This section is referred to in
§58. Inspection authority
For the purpose of ascertaining whether there has been a violation of
(Mar. 8, 1946, ch. 80, §8, as added
Amendments
1994—
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Effective Date
Section effective with respect to conduct described in
Section Referred to in Other Sections
This section is referred to in