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United States Code (Last Updated: May 24, 2014) |
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Title 10. ARMED FORCES |
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SubTitle A. General Military Law |
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Part IV. SERVICE, SUPPLY, AND PROCUREMENT |
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Chapter 137. PROCUREMENT GENERALLY |
§ 2306. Kinds of contracts
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(a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States. (b) Each contract awarded under this chapter after using procedures other than sealed-bid procedures shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by him to obtain business. If a contractor breaks such a warranty the United States may annul the contract without liability or may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration. This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items. (c) A contract entered into by the United States in connection with a military construction project or a military family housing project may not use any form of cost-plus contracting. This prohibition is in addition to the prohibition specified in subsection (a) on the use of the cost-plus-a-percentage-of-cost system of contracting and applies notwithstanding a declaration of war or the declaration by the President of a national emergency under section 201 of the National Emergencies Act (50 U.S.C. 1621) that includes the use of the armed forces. (d) The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed-fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made. (e) (1) Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of— (A) a cost-plus-a-fixed-fee subcontract; or (B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract. (2) Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract. (f) So-called “truth-in-negotiations” provisions relating to cost or pricing data to be submitted by certain contractors and subcontractors are provided in section 2306a of this title. (g) Multiyear contracting authority for the acquisition of services is provided in section 2306c of this title. (h) Multiyear contracting authority for the purchase of property is provided in section 2306b of this title.
Historical And Revision
Historical and Revision Notes | ||
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Revised section | Source (U.S. Code) | Source (Statutes at Large) |
2306(a)
2306(b) | 41:153(a) (1st sentence). 41:153(b) (1st 14 words of 1st sentence). 41:153(a) (less 1st sentence). | Feb. 19, 1948, ch. 65, § 4 (less words after semicolon of last sentence of (b), and less (c)), 62 Stat. 23. |
2306(c) | 41:153(b) (2d sentence). | |
2306(d) | 41:153(b) (1st sentence, less 1st 14 words). | |
2306(e) | 41:153(b) (less 1st and 2d sentences; and less words after semicolon of last sentence). | |
In subsection (a), the words “subject to subsections (b)–(e)” are substituted for the words “Except as provided in subsection (b) of this section”. The words “United States” are substituted for the word “Government”.
In subsection (b), the words “under section 2304 of this title” are substituted for the words “pursuant to section 151(c) of this title”. The words “full amount of such” and “violation” are omitted as surplusage.
In subsection (c), the words “under section 2304 of this title” are inserted for clarity.
Codification
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Prior Provisions
Provisions similar to those in subsec. (h)(11) of this section were contained in Pub. L. 100–526, title I, § 104(a),
Amendments
2011—Subsec. (c). Pub. L. 112–81 added subsec. (c).
2003—Subsec. (e). Pub. L. 108–136 substituted “(1) Except as provided in paragraph (2), each” for “Each”, redesignated former pars. (1) and (2) as subpars. (A) and (B) of par. (1), respectively, redesignated cls. (A) and (B) of former par. (2) as cls. (i) and (ii) of subpar. (B) of par. (1), respectively, and added par. (2).
2000—Subsec. (g). Pub. L. 106–398 amended subsec. (g) generally. Prior to amendment, subsec. (g) consisted of pars. (1) to (3) authorizing the head of an agency to enter into contracts for periods of not more than five years for certain types of services.
1997—Subsec. (h). Pub. L. 105–85 inserted “for the purchase of property” after “Multiyear contracting authority”.
1994—Subsec. (b). Pub. L. 103–355, §§ 4102(b), 8105(a), inserted at end “This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items.”
Subsec. (c). Pub. L. 103–355, § 1021, struck out subsec. (c) which read as follows: “No cost contract, cost-plus-a-fixed-fee contract, or incentive contract may be made under this chapter unless the head of the agency determines that such a contract is likely to be less costly to the United States than any other kind of contract or that it is impracticable to obtain property or services of the kind or quality required except under such a contract.”
Subsec. (e)(2)(A). Pub. L. 103–355, § 4401(c), substituted “simplified acquisition threshold” for “small purchase threshold”.
Subsec. (h). Pub. L. 103–355, § 1022(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) related to requirements for multiyear contracts for purchase of property, including weapon systems and items and services associated with weapons systems.
1991—Subsec. (e)(2)(A). Pub. L. 102–25 substituted “the small purchase threshold” for “the small purchase amount under section 2304(g) of this title”.
1990—Subsec. (h)(1). Pub. L. 101–510, § 808(a), struck out “(other than contracts described in paragraph (6))” after “multiyear contracts” in introductory provisions and substituted “substantial savings of the total anticipated costs of carrying out the program through annual contracts” for “reduced total costs under the contract” in subpar. (A).
Subsec. (h)(6). Pub. L. 101–510, § 808(b), struck out “contracts for the construction, alteration, or major repair of improvements to real property or” after “not apply to”.
Subsec. (h)(9). Pub. L. 101–510, § 808(c)(1), inserted “for a defense acquisition program that has been specifically authorized by law to be carried out using multiyear contract authority” after “under this subsection” in introductory provisions.
Subsec. (h)(9)(C). Pub. L. 101–510, § 808(c)(2), struck out subpar. (C) which read as follows: “The proposed multiyear contract—
“(i) achieves a 10 percent savings as compared to the cost of current negotiated contracts, adjusted for changes in quantity and for inflation; or
“(ii) achieves a 10 percent savings as compared to annual contracts if no recent contract experience exists.”
1989—Subsec. (h)(9) to (11). Pub. L. 101–189 added pars. (9) to (11).
1986—Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [§ 952(c)(1)], Pub. L. 99–661, § 952(c)(1), amended section identically, striking out “: cost or pricing data: truth in negotiation” after “contracts” in section catchline.
Subsec. (f). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [§ 952(b)(1)], Pub. L. 99–661, § 952(b)(1), amended generally subsec. (f) identically, substituting provision that “truth-in-negotiations” provisions relating to cost and pricing data for contractors and subcontractors are provided in section 2306a of this title for provision relating to certification by contractors and subcontractors on cost and pricing data, circumstances under which such certification will be required, circumstances under which such certification, although not required, may be requested, and evaluation of the accuracy of the data submitted.
1985—Subsec. (a). Pub. L. 99–145, § 1303(a)(15)(A), inserted a period at end.
Subsec. (b). Pub. L. 99–145, § 1303(a)(15)(B), struck out “of this title” before “shall contain”.
1984—Pub. L. 98–369, § 2724(f), substituted “Kinds of contracts; cost or pricing data: truth in negotiation” for “Kinds of contracts” in section catchline.
Subsec. (a). Pub. L. 98–369, § 2724(a), substituted “the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into” for “this limitation and subject to subsections (b)–(f), the head of any agency may, in negotiating contracts under section 2304 of this title, make”.
Subsec. (b). Pub. L. 98–369, § 2724(b), substituted “awarded under this chapter after using procedures other than sealed-bid procedures” for “negotiated under section 2304”.
Subsec. (c). Pub. L. 98–369, § 2724(c), substituted “this chapter” for “section 2304 of this title,”.
Subsec. (e)(2). Pub. L. 98–369, § 2724(d), substituted “the greater of (A) the small purchase amount under section 2304(g) of this title, or (B)” for “$25,000 or”.
Subsec. (f)(1). Pub. L. 98–369, § 2724(e)(A)(i), (ii), substituted “such contractor’s or subcontractor’s” for “his” and struck out “he” before “submitted was accurate” in provisions preceding subpar. (A).
Subsec. (f)(1)(A). Pub. L. 98–369, § 2724(3)(A)(iii), (vi), (vii), substituted “prime contract under this chapter entered into after using procedures other than sealed-bid procedures, if” for “negotiated prime contract under this title where”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(1)(B). Pub. L. 98–369, § 2724(e)(A)(iv), (vi), (vii), substituted “if” for “for which”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(1)(C). Pub. L. 98–369, § 2724(e)(A)(v)–(vii), substituted “when” for “where”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(1)(D). Pub. L. 98–369, § 2724(e)(A)(iv), (vi), (vii), substituted “if” for “for which”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(2). Pub. L. 98–369, § 2724(e)(B), (D), (E), struck out “negotiated” before “price as is practicable” and before “is based on adequate price competition”, redesignated as par. (3) the proviso formerly set out in this par., and as part of the redesignation substituted a period for “: Provided, That” after “or noncurrent”.
Subsec. (f)(3). Pub. L. 98–369, § 2724(e)(E), designated as par. (3) the proviso formerly set out in par. (2). Former par. (3) redesignated (5).
Subsec. (f)(4). Pub. L. 98–369, § 2724(e)(F), added par. (4).
Subsec. (f)(5). Pub. L. 98–369, § 2724(e)(C), redesignated former par. (3) as (5) and substituted “proposal for the contract, the discussions conducted on the proposal” for “negotiation”.
1981—Subsec. (f)(1). Pub. L. 97–86, § 907(b), substituted “$500,000” for “$100,000” in subpars. (A) to (D).
Subsec. (g)(1). Pub. L 97–86, § 909(b)(1), struck out “to be performed outside the forty-eight contiguous States and the District of Columbia” after “(and items of supply related to such services)” in provisions preceding subpar. (A).
Subsec. (h). Pub. L. 97–86, § 909(b)(2), added subsec. (h).
1980—Subsec. (f). Pub. L. 96–513, § 511(77)(A), designated existing provisions as pars. (1) to (3) and in par. (1), as so designated, substituted “(A)” to “(D)” for “(1)” to “(4)”, respectively, “prior” for “Prior” wherever appearing, and “clause (C)” for “(3) above”.
Subsec. (g). Pub. L. 96–513, § 511(77)(B), in par. (1) substituted “that—” for “that:”, in par. (2) substituted “(A) The” for “(A) the”, “(B) Consideration” for “(B) consideration”, and “(C) Consideration” for “(C) consideration”, and in par. (3) substituted “from—” for “from:”.
1968—Subsec. (f). Pub. L. 90–512 inserted last par.
Subsec. (g). Pub. L. 90–378 added subsec. (g).
1962—Subsec. (a). Pub. L. 87–653, § 1(d), substituted “subsections (b)–(f)” for “subsections (b)–(e)”.
Subsec. (f). Pub. L. 87–653, § 1(e), added subsec. (f).
Effective Date Of Amendment
Pub. L. 112–81, div. B, title XXVIII, § 2801(b),
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by section 101(c) [title X, § 952(b)(1)] of Pub. L. 99–500 and Pub. L. 99–591, and section 952(b)(1) of Pub. L. 99–661 applicable with respect to contracts or modifications on contracts entered into after end of 120-day period beginning
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after
Amendment by Pub. L. 96–513 effective
For effective date of amendment by Pub. L. 87–653 see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
Miscellaneous
Pub. L. 101–189, div. A, title VIII, § 805(c),
Pub. L. 109–364, div. A, title VIII, § 818(b)–(e),
Pub. L. 100–526, title I, § 104(a),
Pub. L. 94–361, title VIII, § 805,