50 U.S.C. § 1432 — Restrictions

Page 109 TITLE 50—WAR AND NATIONAL DEFENSE § 1433 1 See References in Text note below. subject to the same conditions and limitations as the head of an executive department or agency listed in section 21 of Executive Order 10789 of November 14, 1958 (Authorizing Agencies of the Government to Exercise Certain Contracting Authority in Connection with Na- tional-Defense Functions and Prescribing Regulations Governing the Exercise of Such Authority) [50 U.S.C. 1431 note], as amended, with respect to contracts per- formed in support of efforts by the Department of Vet- erans Affairs to combat the virus. This authority may only be exercised with regard to transactions directly responsive to the COVID–19 national emergency. SEC. 3. The Department of Veterans Affairs is exer- cising functions in connection with the national de- fense in the course of contributing to the Nation’s re- sponse to the ongoing outbreak of COVID–19. I deem that the authorization provided in this memorandum and actions taken pursuant to that authorization would facilitate the national defense. SEC. 4. This memorandum shall terminate on Sep- tember 30, 2020. SEC. 5. (a) Nothing in this memorandum shall be con- strued to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. SEC. 6. You are authorized and directed to publish this memorandum in the Federal Register. DONALD J. TRUMP. § 1432. Restrictions Nothing in this chapter shall be construed to constitute authorization hereunder for— (a) the use of the cost-plus-a-percentage-of- cost system of contracting; (b) any contract in violation of existing law relating to limitation of profits; (c) the negotiation of purchases of or con- tracts for property or services required by law to be procured by formal advertising and com- petitive bidding; (d) the waiver of any bid, payment, perform- ance, or other bond required by law; (e) the amendment of a contract negotiated under section 2304(a)(15) 1 of title 10 or under section 252(c)(13) 1 of title 41, to increase the contract price to an amount higher than the lowest rejected bid of any responsible bidder; or (f) the formalization of an informal commit- ment, unless it is found that at the time the commitment was made it was impracticable to use normal procurement procedures. (Pub. L. 85–804, § 2, Aug. 28, 1958, 72 Stat. 972.) Editorial Notes REFERENCES IN TEXT Section 2304 of title 10, referred to in subd. (e), was amended generally by Pub. L. 98–369 and, as so amend- ed, did not contain a subsec. (a)(15). Section 2304 was re- pealed by Pub. L. 116–283, div. A, title XVIII, §§ 1801(d), 1881(a), Jan. 1, 2021, 134 Stat. 4151, 4293, effective Jan. 1, 2022, with additional provisions for delayed implemen- tation and applicability of existing law. Section 252(c)(13) of title 41, referred to in subd. (e), was renumbered section 252(c)(14) of former Title 41, Public Contracts, by Pub. L. 85–800, § 2(b), Aug. 28, 1958, 72 Stat. 966. Subsequently, Pub. L. 98–369 amended sec- tion 252 of former Title 41 by striking out subsec. (c), redesignating subsec. (e) as (c)(1), and adding subsec. (c)(2). Statutory Notes and Related Subsidiaries NONAPPLICABILITY OF NATIONAL EMERGENCIES ACT The provisions of the National Emergencies Act [see Short Title note set out under section 1601 of this title] shall not apply to the powers and authorities conferred by this section and actions taken hereunder, see sec- tion 1651(a)(4) of this title. § 1433. Public record; examination of records by Comptroller General; exemptions: excep- tional conditions; reports to Congress (a) All actions under the authority of this chapter shall be made a matter of public record under regulations prescribed by the President and when deemed by him not to be detrimental to the national security. (b) All contracts entered into, amended, or modified pursuant to authority contained in this chapter shall include a clause to the effect that the Comptroller General of the United States or any of his duly authorized representa- tives shall, until the expiration of three years after final payment, have access to and the right to examine any directly pertinent books, docu- ments, papers, and records of the contractor or any of his subcontractors engaged in the per- formance of and involving transactions related to such contracts or subcontracts. Under regula- tions to be prescribed by the President, however, such clause may be omitted from contracts with foreign contractors or foreign subcontractors if the agency head determines, with the concur- rence of the Comptroller General of the United States or his designee, that the omission will serve the best interests of the United States. However, the concurrence of the Comptroller General of the United States or his designee is not required for the omission of such clause— (1) where the contractor or subcontractor is a foreign government or agency thereof or is precluded by the laws of the country involved from making its books, documents, papers, or records available for examination; and (2) where the agency head determines, after taking into account the price and availability of the property or services from United States sources, that the public interest would be best served by the omission of the clause. If the clause is omitted based on a determina- tion under clause (2), a written report shall be furnished to the Congress. (Pub. L. 85–804, § 3, Aug. 28, 1958, 72 Stat. 972; Pub. L. 89–607, § 3, Sept. 27, 1966, 80 Stat. 851.) Editorial Notes AMENDMENTS 1966—Subsec. (b). Pub. L. 89–607 provided for exemp- tion of certain contracts with foreign contractors from the requirement for an examination-of-records clause, such determination to be reported to Congress.