10 U.S.C. § 3902 — Credit for Indian contracting in meeting

Page 2582 TITLE 10—ARMED FORCES § 3901 centage of the total workforce of the offeror consisting of severely disabled individuals employed by the offeror shall be one of the evaluation factors. ‘‘(c) CREDIT TOWARD CERTAIN SMALL BUSINESS CON- TRACTING GOALS.—Department of Defense contracts en- tered into with eligible contractors under the dem- onstration project under this section, and subcontracts entered into with eligible contractors under such con- tracts, shall be credited toward the attainment of goals established under section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) regarding the extent of the par- ticipation of disadvantaged small business concerns in contracts of the Department of Defense and sub- contracts under such contracts. ‘‘(d) DEFINITIONS.—In this section: ‘‘(1) ELIGIBLE CONTRACTOR.—The term ‘eligible con- tractor’ means a business entity operated on a for- profit or nonprofit basis that— ‘‘(A) employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over a period prescribed by the Sec- retary; ‘‘(B) pays not less than the minimum wage pre- scribed pursuant to section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) to the employ- ees who are severely disabled individuals; and ‘‘(C) provides for its employees health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region. ‘‘(2) SEVERELY DISABLED INDIVIDUAL.—The term ‘se- verely disabled individual’ means an individual with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) who has a severe physical or mental impairment that seri- ously limits one or more functional capacities.’’ § 3901. Contracts: prohibition on competition be- tween Department of Defense and small busi- nesses (a) EXCLUSION.—In any case in which the Sec- retary of Defense plans to use competitive pro- cedures for a procurement, if the procurement is to be conducted as described in subsection (b), then the Secretary shall exclude the Depart- ment of Defense from competing in the procure- ment. (b) PROCUREMENT DESCRIPTION.—The require- ment to exclude the Department of Defense under subsection (a) applies in the case of a pro- curement to be conducted by excluding from competition entities in the private sector other than small business concerns in furtherance of section 8 or 15 of the Small Business Act (15 U.S.C. 637 or 644). (Added Pub. L. 103–160, div. A, title VIII, § 848(a)(1), Nov. 30, 1993, 107 Stat. 1724, § 2304a; re- numbered § 2304e, Pub. L. 104–106, div. D, title XLIII, § 4321(b)(6)(A), Feb. 10, 1996, 110 Stat. 672; amended Pub. L. 115–232, div. A, title VIII, § 812(a)(2)(C)(vi), Aug. 13, 2018, 132 Stat. 1847; Pub. L. 116–92, div. A, title XVII, § 1731(a)(39)(A), Dec. 20, 2019, 133 Stat. 1814; renumbered § 3901, Pub. L. 116–283, div. A, title XVIII, § 1838(b), Jan. 1, 2021, 134 Stat. 4242; Pub. L. 117–81, div. A, title XVII, § 1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1838(b), as amended by Pub. L. 117–81, § 1701(v)(2)(A), renumbered section 2304e of this title as this section. 2018—Subsec. (b). Pub. L. 115–232 substituted ‘‘other than’’ for ‘‘other than—’’, struck out par. (1) designa- tion before ‘‘small business’’, and struck out par. (2) which read as follows: ‘‘entities described in subsection (a)(1) of section 2323 of this title in furtherance of the goal specified in that subsection.’’ 1996—Pub. L. 104–106 renumbered section 2304a of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE Pub. L. 103–160, div. A, title VIII, § 848(b), Nov. 30, 1993, 107 Stat. 1725, provided that: ‘‘Section 2304a of title 10, United States Code [now 10 U.S.C. 3901], as added by subsection (a), shall take effect on the date of the en- actment of this Act [Nov. 30, 1993].’’ § 3902. Credit for Indian contracting in meeting certain subcontracting goals for small dis- advantaged businesses (a) REGULATIONS.—Subject to subsections (b) and (c), in any case in which a subcontracting goal is specified in a Department of Defense con- tract in the implementation of section 8(d) of the Small Business Act (15 U.S.C. 637(d)), credit toward meeting that subcontracting goal shall be given for— (1) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if such work is performed on any In- dian lands and meets the requirements of paragraph (1) of subsection (b); or (2) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if the performance of such contract or subcontract is undertaken as a joint ven- ture that meets the requirements of paragraph (2) of that subsection. (b) ELIGIBLE WORK.—(1) Work performed on In- dian lands meets the requirements of this para- graph if— (A) not less than 40 percent of the workers directly engaged in the performance of the work are Indians; or (B) the contractor or subcontractor has an agreement with the tribal government having jurisdiction over such Indian lands that pro- vides goals for training and development of the Indian workforce and Indian management. (2) A joint venture undertaking to perform a contract or subcontract meets the requirements of this paragraph if— (A) an Indian tribe or tribally owned cor- poration owns at least 50 percent of the joint venture; (B) the activities of the joint venture under the contract or subcontract provide employ- Page 2583 TITLE 10—ARMED FORCES § 3903 ment opportunities for Indians either directly or through the purchase of products or serv- ices for the performance of such contract or subcontract; and (C) the Indian tribe or tribally owned cor- poration manages the performance of such contract or subcontract. (c) EXTENT OF CREDIT.—The amount of the credit given toward the attainment of any sub- contracting goal under subsection (a) shall be— (1) in the case of work performed as de- scribed in subsection (a)(1), the value of the work performed; and (2) in the case of a contract or subcontract undertaken to be performed by a joint venture as described in subsection (a)(2), an amount equal to the amount of the contract or sub- contract multiplied by the percentage of the tribe’s or tribally owned corporation’s owner- ship interest in the joint venture. (d) REGULATIONS.—The Secretary of Defense shall prescribe regulations for the implementa- tion of this section. (e) DEFINITIONS.—In this section: (1) The term ‘‘Indian lands’’ has the meaning given that term by section 4(4) of the Indian Gaming Regulatory Act (25 U.S.C. 2703(4)). (2) The term ‘‘Indian’’ has the meaning given that term by section 4(d) of the Indian Self- Determination and Education Assistance Act (25 U.S.C. 5304(d)). (3) The term ‘‘Indian tribe’’ has the meaning given that term by section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(e)). (4) The term ‘‘tribally owned corporation’’ means a corporation owned entirely by an In- dian tribe. (Added Pub. L. 102–484, div. A, title VIII, § 801(g)(1), Oct. 23, 1992, 106 Stat. 2445, § 2323a; amended Pub. L. 104–201, div. A, title X, § 1074(a)(13), Sept. 23, 1996, 110 Stat. 2659; Pub. L. 115–232, div. A, title VIII, § 812(a)(2)(C)(vii), Aug. 13, 2018, 132 Stat. 1847; Pub. L. 116–92, div. A, title XVII, § 1731(a)(39)(B), Dec. 20, 2019, 133 Stat. 1814; renumbered § 3902, Pub. L. 116–283, div. A, title XVIII, § 1838(b), Jan. 1, 2021, 134 Stat. 4242; Pub. L. 117–81, div. A, title XVII, § 1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154.) Editorial Notes CODIFICATION Section, as added by Pub. L. 102–484, consists of text of Pub. L. 101–189, div. A, title VIII, § 832, Nov. 29, 1989, 103 Stat. 1508, revised by Pub. L. 102–484 by substituting ‘‘section 2323 of this title’’ for ‘‘section 1207 of the Na- tional Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)’’ in subsec. (a). Section 832 of Pub. L. 101–189, which was formerly set out as a note under section 2301 of this title, was repealed by Pub. L. 102–484, div. A, title VIII, § 801(h)(5), Oct. 23, 1992, 106 Stat. 2445. AMENDMENTS 2021—Pub. L. 116–283, § 1838(b), as amended by Pub. L. 117–81, § 1701(v)(2)(A), renumbered section 2323a of this title as this section. 2019—Pub. L. 116–92, § 1731(a)(39)(B)(i), struck out ‘‘and certain institutions of higher education’’ after ‘‘busi- nesses’’ in section catchline. Subsec. (e)(1). Pub. L. 116–92, § 1731(a)(39)(B)(ii)(I), struck out ‘‘102 Stat. 2468;’’ before ‘‘25 U.S.C. 2703(4)).’’ Subsec. (e)(2). Pub. L. 116–92, § 1731(a)(39)(B)(ii)(II), substituted ‘‘(25 U.S.C. 5304(d))’’ for ‘‘(25 U.S.C. 450b(d))’’. Subsec. (e)(3). Pub. L. 116–92, § 1731(a)(39)(B)(ii)(III), substituted ‘‘(25 U.S.C. 5304(e))’’ for ‘‘(25 U.S.C. 450b(e))’’. 2018—Subsec. (a). Pub. L. 115–232 struck out ‘‘section 2323 of this title and’’ after ‘‘implementation of’’. 1996—Subsec. (a). Pub. L. 104–201, which directed amendment of subsec. (a) by substituting ‘‘section 2323 of this title’’ for ‘‘section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)’’, could not be executed because the language ‘‘section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)’’ did not appear. See Codification note above. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. § 3903. Subcontracting plans: credit for certain purchases (a) PURCHASES BENEFITING SEVERELY HANDI- CAPPED PERSONS.—In the case of a business con- cern that has negotiated a small business sub- contracting plan with a military department or a Defense Agency, purchases made by that busi- ness concern from qualified nonprofit agencies for the blind or other severely handicapped shall count toward meeting the subcontracting goal provided in that plan. (b) DEFINITIONS.—In this section: (1) The term ‘‘small business subcontracting plan’’ means a plan negotiated pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)) that establishes a goal for the participation of small business concerns as subcontractors under a contract. (2) The term ‘‘qualified nonprofit agency for the blind or other severely handicapped’’ means— (A) a qualified nonprofit agency for the blind, as defined in section 8501(7) of title 41; (B) a qualified nonprofit agency for other severely disabled, as defined in section 8501(6) of title 41; and (C) a central nonprofit agency designated by the Committee for Purchase from People Who Are Blind or Severely Disabled under section 8503(c) of title 41. (Added Pub. L. 102–484, div. A, title VIII, § 808(b)(1), Oct. 23, 1992, 106 Stat. 2449, § 2410d; amended Pub. L. 103–337, div. A, title VIII, § 804, Oct. 5, 1994, 108 Stat. 2815; Pub. L. 104–106, div. D, title XLIII, § 4321(b)(15), Feb. 10, 1996, 110 Stat. 673; Pub. L. 105–85, div. A, title VIII, § 835, Nov. 18, 1997, 111 Stat. 1843; Pub. L. 106–65, div. A, title VIII, § 807, Oct. 5, 1999, 113 Stat. 705; Pub. L. 111–350, § 5(b)(29), Jan. 4, 2011, 124 Stat. 3845; re- numbered § 3903, Pub. L. 116–283, div. A, title