41 U.S.C. § 1909 — Management of purchase cards

Page 64 TITLE 41—PUBLIC CONTRACTS § 1909 to the baseline constant dollar value of that threshold. (3) EXCLUSIVE MEANS OF ADJUSTMENT.—A dol- lar threshold adjustable under this section shall be adjusted only as provided in this sec- tion. (d) PUBLICATION.—The Council shall publish a notice of the adjusted dollar thresholds under this section in the Federal Register. The thresh- olds take effect on the date of publication and shall apply, in the case of the procurement of property or services by contract, to a contract, and any subcontract at any tier under the con- tract, in effect on that date without regard to the date of award of the contract or subcontract. (e) CALCULATION.—An adjustment under this section shall be— (1) calculated on the basis of changes in the Consumer Price Index for all-urban consumers published monthly by the Secretary of Labor; and (2) rounded, in the case of a dollar threshold that as calculated under paragraph (1) is— (A) less than $10,000, to the nearest $500; (B) not less than $10,000, but less than $100,000, to the nearest $5,000; (C) not less than $100,000, but less than $1,000,000, to the nearest $50,000; (D) not less than $1,000,000, but less than $10,000,000, to the nearest $500,000; (E) not less than $10,000,000, but less than $100,000,000, to the nearest $5,000,000; (F) not less than $100,000,000, but less than $1,000,000,000, to the nearest $50,000,000; and (G) $1,000,000,000 or more, to the nearest $500,000,000. (f) PETITION FOR INCLUSION OF OMITTED THRESHOLD.— (1) PETITION SUBMITTED TO ADMINISTRATOR.— A person may request adjustment of a dollar threshold adjustable under this section that is not included in a notice of adjustment pub- lished under subsection (d) by submitting a pe- tition for adjustment to the Administrator. (2) ACTIONS OF ADMINISTRATOR.—On receipt of a petition for adjustment of a dollar thresh- old under paragraph (1), the Administrator— (A) shall determine, in writing, whether the dollar threshold is required to be ad- justed under this section; and (B) on determining that it should be ad- justed, shall publish in the Federal Register a revised notice of the adjustment dollar thresholds under this section that includes the adjustment of the dollar threshold cov- ered by the petition. (3) EFFECTIVE DATE OF ADJUSTMENT BY PETI- TION.—The adjustment of a dollar threshold pursuant to a petition under this subsection takes effect on the date the revised notice add- ing the adjustment under paragraph (2)(B) is published. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3725; Pub. L. 114–92, div. A, title VIII, § 817, Nov. 25, 2015, 129 Stat. 897; Pub. L. 115–91, div. A, title VIII, § 821, Dec. 12, 2017, 131 Stat. 1464; Pub. L. 117–58, div. G, title IX, § 70922(f), Nov. 15, 2021, 135 Stat. 1305; Pub. L. 117–81, div. A, title VIII, § 861, Dec. 27, 2021, 135 Stat. 1851.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1908(a) ........ no source. 1908(b)(1) .... 41:431a(c). Pub. L. 93–400, § 35A, as added Pub. L. 108–375, title VIII, § 807(a)(1), Oct. 28, 2004, 118 Stat. 2010. 1908(b)(2) .... 41:431a(d). 1908(b)(3) .... 41:431a note. Pub. L. 108–375, title VIII, § 807(c)(1), Oct. 28, 2004, 118 Stat. 2011. 1908(c)(1), (2). 41:431a(a). 1908(c)(3) .... 41:431a note. Pub. L. 108–375, title VIII, § 807(c)(2), Oct. 28, 2004, 118 Stat. 2011. 1908(d) ........ 41:431a(b). 1908(e) ........ 41:431a(e). 1908(f) ........ 41:431a(f). In subsection (c)(3), the words ‘‘After the date of the enactment of this Act’’ are omitted as obsolete. In subsection (e)(1), the words ‘‘Secretary of Labor’’ are substituted for ‘‘Department of Labor’’ because of 29:551. Editorial Notes REFERENCES IN TEXT The Trade Agreements Act of 1979, referred to in sub- sec. (b)(2)(C), is Pub. L. 96–39, July 26, 1979, 93 Stat. 144. Title III of the Act is classified generally to subchapter I (§ 2511 et seq.) of chapter 13 of Title 19, Customs Du- ties. For complete classification of this Act to the Code, see References in Text note set out under section 2501 of Title 19 and Tables. The date of the enactment of this subparagraph, re- ferred to in subsec. (b)(2)(D), is the date of enactment of Pub. L. 117–81, which was approved Dec. 27, 2021. AMENDMENTS 2021—Subsec. (b)(2)(A). Pub. L. 117–58 substituted ‘‘chapters 67 and 83’’ for ‘‘chapter 67’’. Subsec. (b)(2)(D). Pub. L. 117–81, § 861(a), added subpar. (D). Subsec. (d). Pub. L. 117–81, § 861(b), struck out second period at end. 2017—Subsec. (d). Pub. L. 115–91 inserted before period at end ‘‘and shall apply, in the case of the procurement of property or services by contract, to a contract, and any subcontract at any tier under the contract, in ef- fect on that date without regard to the date of award of the contract or subcontract.’’ 2015—Subsec. (e)(2). Pub. L. 114–92, § 817(1), substituted ‘‘as calculated under paragraph (1)’’ for ‘‘on the day be- fore the adjustment’’ in introductory provisions. Subsec. (e)(2)(D) to (G). Pub. L. 114–92, § 817(2), (3), added subpars. (D) to (G) and struck out former subpar. (D) which read as follows: ‘‘$1,000,000 or more, to the nearest $500,000.’’ Statutory Notes and Related Subsidiaries ADJUSTMENT FOR INFLATION OF RIGHT-HAND DRIVE PASSENGER SEDANS Pub. L. 112–81, div. A, title VIII, § 814(b), Dec. 31, 2011, 125 Stat. 1491, provided that: ‘‘The Department of De- fense representative to the Federal Acquisition Regu- latory Council established under section 1302 of title 41, United States Code, shall ensure that the threshold es- tablished in section 2253 of title 10, United States Code, for the acquisition of right-hand drive passenger sedans is included on the list of dollar thresholds that are sub- ject to adjustment for inflation in accordance with the requirements of section 1908 of title 41, United States Code, and is adjusted pursuant to such provision, as ap- propriate.’’ § 1909. Management of purchase cards (a) REQUIRED SAFEGUARDS AND INTERNAL CON- TROLS.—The head of each executive agency that Page 65 TITLE 41—PUBLIC CONTRACTS § 1909 issues and uses purchase cards and convenience checks shall establish and maintain safeguards and internal controls to ensure the following: (1) There is a record in each executive agen- cy of each holder of a purchase card issued by the agency for official use, annotated with the limitations on single transactions and total transactions that are applicable to the use of each such card or check by that purchase card holder. (2) Each purchase card holder and individual issued a convenience check is assigned an ap- proving official other than the card holder with the authority to approve or disapprove transactions. (3) The holder of a purchase card and each official with authority to authorize expendi- tures charged to the purchase card are respon- sible for— (A) reconciling the charges appearing on each statement of account for that purchase card with receipts and other supporting doc- umentation; and (B) forwarding a summary report to the certifying official in a timely manner of in- formation necessary to enable the certifying official to ensure that the Federal Govern- ment ultimately pays only for valid charges that are consistent with the terms of the ap- plicable Government-wide purchase card contract entered into by the Administrator of General Services. (4) Any disputed purchase card charge, and any discrepancy between a receipt and other supporting documentation and the purchase card statement of account, is resolved in the manner prescribed in the applicable Govern- ment-wide purchase card contract entered into by the Administrator of General Services. (5) Payments on purchase card accounts are made promptly within prescribed deadlines to avoid interest penalties. (6) Rebates and refunds based on prompt payment, sales volume, or other actions by the agency on purchase card accounts are re- viewed for accuracy and properly recorded as a receipt to the agency that pays the monthly bill. (7) Records of each purchase card trans- action (including records on associated con- tracts, reports, accounts, and invoices) are re- tained in accordance with standard Govern- ment policies on the disposition of records. (8) Periodic reviews are performed to deter- mine whether each purchase card holder has a need for the purchase card. (9) Appropriate training is provided to each purchase card holder and each official with re- sponsibility for overseeing the use of purchase cards issued by the executive agency. (10) The executive agency has specific poli- cies regarding the number of purchase cards issued by various component organizations and categories of component organizations, the credit limits authorized for various cat- egories of card holders, and categories of em- ployees eligible to be issued purchase cards, and that those policies are designed to mini- mize the financial risk to the Federal Govern- ment of the issuance of the purchase cards and to ensure the integrity of purchase card hold- ers. (11) The executive agency uses effective sys- tems, techniques, and technologies to prevent or identify illegal, improper, or erroneous pur- chases. (12) The executive agency invalidates the purchase card of each employee who— (A) ceases to be employed by the agency, immediately upon termination of the em- ployment of the employee; or (B) transfers to another unit of the agency, immediately upon the transfer of the em- ployee unless the agency determines that the units are covered by the same purchase card authority. (13) The executive agency takes steps to re- cover the cost of any illegal, improper, or er- roneous purchase made with a purchase card or convenience check by an employee, includ- ing, as necessary, through salary offsets. (b) GUIDANCE.—The Director of the Office of Management and Budget shall review existing guidance and, as necessary, prescribe additional guidance governing the implementation of the requirements of subsection (a) by executive agencies. (c) PENALTIES FOR VIOLATIONS.— (1) IN GENERAL.—The head of each executive agency shall provide for appropriate adverse personnel actions or other punishment to be imposed in cases in which employees of the agency violate agency policies implementing the guidance required by subsection (b) or make illegal, improper, or erroneous pur- chases with purchase cards or convenience checks. (2) DISMISSAL.—Penalties prescribed for em- ployee misuse of purchase cards or conven- ience checks shall include dismissal of the em- ployee, as appropriate. (3) REPORTS ON VIOLATIONS.—The guidance prescribed under subsection (b) shall direct each head of an executive agency with more than $10,000,000 in purchase card spending an- nually, and each Inspector General of such an executive agency, on a semiannual basis, to submit to the Director of the Office of Man- agement and Budget a joint report on viola- tions or other actions covered by paragraph (1) by employees of such executive agency. At a minimum, the report shall set forth the fol- lowing: (A) A summary description of confirmed violations involving misuse of a purchase card following completion of a review by the agency or by the Inspector General of the agency. (B) A summary description of all adverse personnel action, punishment, or other ac- tion taken based on each violation. (d) RISK ASSESSMENTS AND AUDITS.—The In- spector General of each executive agency shall— (1) conduct periodic assessments of the agen- cy purchase card or convenience check pro- grams to identify and analyze risks of illegal, improper, or erroneous purchases and pay- ments in order to develop a plan for using such risk assessments to determine the scope, fre- quency, and number of periodic audits of pur- chase card or convenience check transactions; Page 66 TITLE 41—PUBLIC CONTRACTS § 2101 (2) perform analysis or audits, as necessary, of purchase card transactions designed to identify— (A) potentially illegal, improper, or erro- neous uses of purchase cards; (B) any patterns of such uses; and (C) categories of purchases that could be made by means other than purchase cards in order to better aggregate purchases and ob- tain lower prices (excluding transactions made under card-based strategic sourcing ar- rangements); (3) report to the head of the executive agen- cy concerned on the results of such analysis or audits; and (4) report to the Director of the Office of Management and Budget on the implementa- tion of recommendations made to the head of the executive agency to address findings of any analysis or audit of purchase card and convenience check transactions or programs for compilation and transmission by the Di- rector to Congress and the Comptroller Gen- eral. (e) RELATIONSHIP TO DEPARTMENT OF DEFENSE PURCHASE CARD REGULATIONS.—The require- ments of this section shall not apply to the De- partment of Defense. See section 4754 of title 10 for provisions relating to management of pur- chase cards in the Department. (Added Pub. L. 112–194, § 2(a)(1), Oct. 5, 2012, 126 Stat. 1445; Pub. L. 117–81, div. A, title XVII, § 1702(h)(9), Dec. 27, 2021, 135 Stat. 2158.) Editorial Notes AMENDMENTS 2021—Subsec. (e). Pub. L. 117–81 substituted ‘‘section 4754’’ for ‘‘section 2784’’. Statutory Notes and Related Subsidiaries DEADLINE FOR GUIDANCE ON MANAGEMENT OF PURCHASE CARDS Pub. L. 112–194, § 2(c), Oct. 5, 2012, 126 Stat. 1448, re- quired the Director of the Office of Management and Budget to prescribe the guidance required by subsec. (b) of this section not later than 180 days after Oct. 5, 2012. CHAPTER 21—RESTRICTIONS ON OBTAINING AND DISCLOSING CERTAIN INFORMATION Sec. 2101. Definitions. 2102. Prohibitions on disclosing and obtaining pro- curement information. 2103. Actions required of procurement officers when contacted regarding non-Federal em- ployment. 2104. Prohibition on former official’s acceptance of compensation from contractor. 2105. Penalties and administrative actions. 2106. Reporting information believed to constitute evidence of offense. 2107. Savings provisions. § 2101. Definitions In this chapter: (1) CONTRACTING OFFICER.—The term ‘‘con- tracting officer’’ means an individual who, by appointment in accordance with applicable regulations, has the authority to enter into a Federal agency procurement contract on be- half of the Government and to make deter- minations and findings with respect to the contract. (2) CONTRACTOR BID OR PROPOSAL INFORMA- TION.—The term ‘‘contractor bid or proposal information’’ means any of the following in- formation submitted to a Federal agency as part of, or in connection with, a bid or pro- posal to enter into a Federal agency procure- ment contract, if that information previously has not been made available to the public or disclosed publicly: (A) Cost or pricing data (as defined in sec- tion 3701 of title 10 with respect to procure- ments subject to that section and section 3501(a) of this title with respect to procure- ments subject to that section). (B) Indirect costs and direct labor rates. (C) Proprietary information about manu- facturing processes, operations, or tech- niques marked by the contractor in accord- ance with applicable law or regulation. (D) Information marked by the contractor as ‘‘contractor bid or proposal information’’, in accordance with applicable law or regula- tion. (3) FEDERAL AGENCY.—The term ‘‘Federal agency’’ has the meaning given that term in section 102 of title 40. (4) FEDERAL AGENCY PROCUREMENT.—The term ‘‘Federal agency procurement’’ means the acquisition (by using competitive proce- dures and awarding a contract) of goods or services (including construction) from non- Federal sources by a Federal agency using ap- propriated funds. (5) OFFICIAL.—The term ‘‘official’’ means— (A) an officer, as defined in section 2104 of title 5; (B) an employee, as defined in section 2105 of title 5; and (C) a member of the uniformed services, as defined in section 2101(3) of title 5. (6) PROTEST.—The term ‘‘protest’’ means a written objection by an interested party to the award or proposed award of a Federal agency procurement contract, pursuant to subchapter V of chapter 35 of title 31. (7) SOURCE SELECTION INFORMATION.—The term ‘‘source selection information’’ means any of the following information prepared for use by a Federal agency to evaluate a bid or proposal to enter into a Federal agency pro- curement contract, if that information pre- viously has not been made available to the public or disclosed publicly: (A) Bid prices submitted in response to a Federal agency solicitation for sealed bids, or lists of those bid prices before public bid opening. (B) Proposed costs or prices submitted in response to a Federal agency solicitation, or lists of those proposed costs or prices. (C) Source selection plans. (D) Technical evaluation plans. (E) Technical evaluations of proposals. (F) Cost or price evaluations of proposals. (G) Competitive range determinations that identify proposals that have a reasonable