41 U.S.C. § 1904 — Certain transactions for defense against

Page 60 TITLE 41—PUBLIC CONTRACTS § 1904 1 See References in Text note below. (A) $750,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and (B) $1,500,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States; and (3) the $5,000,000 limitation in sections 1901(a)(2) and 3305(a)(2) of this title and section 3205(a)(2) of title 10 is deemed to be $10,000,000. (c) AUTHORITY TO TREAT PROPERTY OR SERVICE AS COMMERCIAL PRODUCT OR COMMERCIAL SERV- ICE.— (1) IN GENERAL.—The head of an executive agency carrying out a procurement of prop- erty or a service to which this section applies under subsection (a)(2) may treat the property or service as a commercial product or a com- mercial service for the purpose of carrying out the procurement. (2) CERTAIN CONTRACTS NOT EXEMPT FROM STANDARDS OR REQUIREMENTS.—A contract in an amount of more than $15,000,000 that is awarded on a sole source basis for a product or service treated as a commercial product or a commercial service under paragraph (1) is not exempt from— (A) cost accounting standards prescribed under section 1502 of this title; or (B) cost or pricing data requirements (commonly referred to as truth in negoti- ating) under chapter 35 of this title and chapter 271 of title 10. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3721; Pub. L. 114–92, div. A, title VIII, § 816, Nov. 25, 2015, 129 Stat. 897; Pub. L. 114–328, div. A, title VIII, § 816, title XVI, § 1641, Dec. 23, 2016, 130 Stat. 2272, 2600; Pub. L. 115–232, div. A, title VIII, § 836(b)(5), Aug. 13, 2018, 132 Stat. 1861; Pub. L. 117–81, div. A, title XVII, § 1702(h)(7), Dec. 27, 2021, 135 Stat. 2158.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1903(a) ........ 41:428a(a), (e). Pub. L. 93–400, § 32A, as added Pub. L. 108–136, title XIV, § 1443(a)(1), Nov. 24, 2003, 117 Stat. 1675; Pub. L. 108–375, title VIII, § 822, Oct. 28, 2004, 118 Stat. 2016. 1903(b) ........ 41:428a(b), (c). 1903(c) ........ 41:428a(d). Editorial Notes REFERENCES IN TEXT The Foreign Assistance Act of 1961, referred to in sub- sec. (a)(3), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424. Chapter 9 of part I of the Act is classified generally to part IX [§ 2292 et seq.] of subchapter I of chapter 32 of Title 22, Foreign Relations and Intercourse. For com- plete classification of this Act to the Code, see Short Title note set out under section 2151 of Title 22 and Ta- bles. AMENDMENTS 2021—Subsec. (b)(3). Pub. L. 117–81, § 1702(h)(7)(A), sub- stituted ‘‘section 3205(a)(2)’’ for ‘‘section 2304(g)(1)(B)’’. Subsec. (c)(2)(B). Pub. L. 117–81, § 1701(h)(7)(B), sub- stituted ‘‘chapter 271’’ for ‘‘section 2306a’’. 2018—Subsec. (c). Pub. L. 115–232, § 836(b)(5)(A), sub- stituted ‘‘Commercial Product or Commercial Service’’ for ‘‘Commercial Item’’ in heading. Subsec. (c)(1). Pub. L. 115–232, § 836(b)(5)(B), sub- stituted ‘‘as a commercial product or a commercial service’’ for ‘‘as a commercial item’’. Subsec. (c)(2). Pub. L. 115–232, § 836(b)(5)(C), sub- stituted ‘‘for a product or service treated as a commer- cial product or a commercial service’’ for ‘‘for an item or service treated as a commercial item’’ in introduc- tory provisions. 2016—Subsec. (a)(2). Pub. L. 114–328, § 1641, inserted ‘‘cyber,’’ before ‘‘nuclear,’’. Subsec. (a)(3), (4). Pub. L. 114–328, § 816, added pars. (3) and (4). 2015—Subsec. (b)(2)(A). Pub. L. 114–92, § 816(1), sub- stituted ‘‘$750,000’’ for ‘‘$250,000’’. Subsec. (b)(2)(B). Pub. L. 114–92, § 816(2), substituted ‘‘$1,500,000’’ for ‘‘$1,000,000’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 1904. Certain transactions for defense against attack (a) AUTHORITY.— (1) IN GENERAL.—The head of an executive agency that engages in basic research, applied research, advanced research, and development projects that are necessary to the responsibil- ities of the executive agency in the field of re- search and development and have the poten- tial to facilitate defense against or recovery from terrorism or nuclear, biological, chem- ical, or radiological attack may exercise the same authority (subject to the same restric- tions and conditions) with respect to the re- search and projects as the Secretary of De- fense may exercise under section 2371 1 of title 10, except for subsections (b) and (f) of section 2371. (2) PROTOTYPE PROJECTS.—The head of an ex- ecutive agency, under the authority of para- graph (1), may carry out prototype projects that meet the requirements of paragraph (1) in accordance with the requirements and condi- tions provided for carrying out prototype projects under section 845 1 of the National De- fense Authorization Act for Fiscal Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note), in- cluding that, to the maximum extent prac- ticable, competitive procedures shall be used when entering into agreements to carry out projects under section 845(a) of that Act and that the period of authority to carry out projects under section 845(a) of that Act termi- nates as provided in section 845(i) of that Act. (3) APPLICATION OF REQUIREMENTS AND CONDI- TIONS.—In applying the requirements and con- ditions of section 845 of that Act under this subsection— (A) section 845(c) of that Act shall apply with respect to prototype projects carried out under paragraph (2); and (B) the Director of the Office of Manage- ment and Budget shall perform the functions of the Secretary of Defense under section 845(d) of that Act. Page 61 TITLE 41—PUBLIC CONTRACTS § 1905 (4) APPLICABILITY TO SELECTED EXECUTIVE AGENCIES.— (A) OFFICE OF MANAGEMENT AND BUDGET.— The head of an executive agency may exer- cise authority under this subsection for a project only if authorized by the Director of the Office of Management and Budget. (B) DEPARTMENT OF HOMELAND SECURITY.— Authority under this subsection does not apply to the Secretary of Homeland Security while section 831 of the Homeland Security Act of 2002 (6 U.S.C. 391) is in effect. (b) REGULATIONS.—The Director of the Office of Management and Budget shall prescribe regu- lations to carry out this section. No transaction may be conducted under the authority of this section before the regulations take effect. (c) ANNUAL REPORT.—The annual report of the head of an executive agency that is required under section 2371(h) 1 of title 10, as applied to the head of the executive agency by subsection (a), shall be submitted to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representa- tives. (d) TERMINATION OF AUTHORITY.—The author- ity to carry out transactions under subsection (a) terminates on September 30, 2008. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3721.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1904 ............ 41:428a note. Pub. L. 108–136, title XIV, § 1441, Nov. 24, 2003, 117 Stat. 1673. In subsection (a)(2), the reference to subsection (g) of section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note) is changed to subsection (i) because of section 847(c)(1) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136, 117 Stat. 1554), which redesignated subsection (g) as subsection (h), and section 823(2) of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163, 119 Stat. 3387), which redesignated subsection (h) as subsection (i). In subsection (a)(3)(A), the words ‘‘paragraph (2)’’ are substituted for ‘‘this paragraph’’ to correct the cross- reference. In subsection (a)(4)(A), the words ‘‘to use the author- ity for such project’’ are omitted as unnecessary. In subsection (c), the words ‘‘Committee on Home- land Security and Governmental Affairs’’ are sub- stituted for ‘‘Committee on Governmental Affairs’’ on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004). The words ‘‘Committee on Oversight and Government Reform’’ are substituted for ‘‘Com- mittee on Government Reform’’ on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007). Editorial Notes REFERENCES IN TEXT Section 2371 of title 10, referred to in subsec. (a)(1), was renumbered section 4021 of title 10 by Pub. L. 116–283, § 1841(b)(1), as amended by Pub. L. 117–81, div. A, title XVII, § 1701(u)(2)(B), Dec. 27, 2021, 135 Stat. 2151. Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note), referred to in subsec. (a)(2), was repealed by Pub. L. 114–92, div. A, title VIII, § 815(c), Nov. 25, 2015, 129 Stat. 896. Section 2371(h) of title 10, referred to in subsec. (c), was repealed by Pub. L. 113–291, div. A, title X, § 1071(f)(20), Dec. 19, 2014, 128 Stat. 3511. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Con- gress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representa- tives by House Resolution No. 5, One Hundred Eight- eenth Congress, Jan. 9, 2023. § 1905. List of laws inapplicable to contracts or subcontracts not greater than simplified ac- quisition threshold (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning given that term in section 1301 of this title. (b) INCLUSION IN FEDERAL ACQUISITION REGULA- TION.— (1) IN GENERAL.—The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts or sub- contracts in amounts not greater than the simplified acquisition threshold. A provision of law properly included on the list pursuant to paragraph (2) does not apply to contracts or subcontracts in amounts not greater than the simplified acquisition threshold that are made by an executive agency. This section does not render a provision of law not included on the list inapplicable to contracts and subcontracts in amounts not greater than the simplified ac- quisition threshold. (2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law described in subsection (c) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of laws required by paragraph (1) unless the Council makes a written determination that it would not be in the best interest of the Fed- eral Government to exempt contracts or sub- contracts in amounts not greater than the simplified acquisition threshold from the ap- plicability of the provision. (c) COVERED LAW.—A provision of law referred to in subsection (b)(2) is a provision of law that the Council determines sets forth policies, pro- cedures, requirements, or restrictions for the procurement of property or services by the Fed- eral Government, except for a provision of law that— (1) provides for criminal or civil penalties; or (2) specifically refers to this section and pro- vides that, notwithstanding this section, it shall be applicable to contracts or sub- contracts in amounts not greater than the simplified acquisition threshold. (d) PETITION.—A person may petition the Ad- ministrator to take appropriate action when a provision of law described in subsection (c) is not included on the list of inapplicable provi- sions of law as required by subsection (b) and