41 U.S.C. § 1906 — List of laws inapplicable to procurements

Page 62 TITLE 41—PUBLIC CONTRACTS § 1906 the Council has not made a written determina- tion pursuant to subsection (b)(2). The Adminis- trator shall revise the Federal Acquisition Reg- ulation to include the provision on the list of in- applicable provisions of law unless the Council makes a determination pursuant to subsection (b)(2) within 60 days after the petition is re- ceived. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3722.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1905(a) ........ no source. 1905(b)–(d) .. 41:429. Pub. L. 93–400, § 33, as added Pub. L. 103–355, title IV, § 4101, Oct. 13, 1994, 108 Stat. 3339. § 1906. List of laws inapplicable to procurements of commercial products and commercial services (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning given that term in section 1301 of this title. (b) CONTRACTS.— (1) INCLUSION IN FEDERAL ACQUISITION REGU- LATION.—The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts for the procure- ment of commercial products or commercial services. A provision of law properly included on the list pursuant to paragraph (2) does not apply to purchases of commercial products or commercial services by an executive agency. This section does not render a provision of law not included on the list inapplicable to con- tracts for the procurement of commercial products or commercial services. (2) LAWS ENACTED AFTER OCTOBER 13, 1994.—A provision of law described in subsection (d) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law 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 for the procurement of commercial products or com- mercial services from the applicability of the provision. (c) SUBCONTRACTS.— (1) DEFINITION.—In this subsection, the term ‘‘subcontract’’ includes a transfer of commer- cial products or commercial services between divisions, subsidiaries, or affiliates of a con- tractor or subcontractor. The term does not include agreements entered into by a con- tractor for the supply of commodities that are intended for use in the performance of mul- tiple contracts with the Federal Government and other parties and are not identifiable to any particular contract. (2) INCLUSION IN FEDERAL ACQUISITION REGU- LATION.—The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to subcontracts under a con- tract or subcontract for the procurement of commercial products or commercial services. A provision of law properly included on the list pursuant to paragraph (3) does not apply to those subcontracts. This section does not render a provision of law not included on the list inapplicable to subcontracts under a con- tract for the procurement of commercial prod- ucts or commercial services. (3) PROVISIONS TO BE EXCLUDED FROM LIST.— A provision of law described in subsection (d) shall be included on the list of inapplicable provisions of law required by paragraph (2) un- less the Council makes a written determina- tion that it would not be in the best interest of the Federal Government to exempt sub- contracts under a contract for the procure- ment of commercial products or commercial services from the applicability of the provi- sion. (4) WAIVER NOT AUTHORIZED.—This sub- section does not authorize the waiver of the applicability of any provision of law with re- spect to any subcontract under a contract with a prime contractor reselling or distrib- uting commercial products or commercial services of another contractor without adding value. (d) COVERED LAW.—A provision of law referred to in subsections (b)(2) and (c) is a provision of law that the Council determines sets forth poli- cies, procedures, requirements, or restrictions for the procurement of property or services by the Federal 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 for the pro- curement of commercial products or commer- cial services. (e) PETITION.—A person may petition the Ad- ministrator to take appropriate action when a provision of law described in subsection (d) is not included on the list of inapplicable provi- sions of law as required by subsection (b) or (c) and the Council has not made a written deter- mination pursuant to subsection (b)(2) or (c)(3). The Administrator shall revise the Federal Ac- quisition Regulation to include the provision on the list of inapplicable provisions of law unless the Council makes a determination pursuant to subsection (b)(2) or (c)(3) within 60 days after the petition is received. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3723; Pub. L. 115–91, div. A, title VIII, § 820, Dec. 12, 2017, 131 Stat. 1464; Pub. L. 115–232, div. A, title VIII, § 836(b)(6)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1861.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1906(a) ........ no source. 1906(b)–(e) .. 41:430. Pub. L. 93–400, § 34, as added Pub. L. 103–355, title VIII, § 8003(a), Oct. 13, 1994, 108 Stat. 3388. Editorial Notes AMENDMENTS 2018—Pub. L. 115–232, § 836(b)(6)(B)(i), substituted ‘‘List of laws inapplicable to procurements of commer- cial products and commercial services’’ for ‘‘List of laws inapplicable to procurements of commercial items’’ in section catchline. Page 63 TITLE 41—PUBLIC CONTRACTS § 1908 Subsecs. (b) to (d). Pub. L. 115–232, § 836(b)(6)(A), sub- stituted ‘‘commercial products or commercial services’’ for ‘‘commercial items’’ wherever appearing. 2017—Subsec. (c)(1). Pub. L. 115–91 inserted at end ‘‘The term does not include agreements entered into by a contractor for the supply of commodities that are in- tended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract.’’ 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. § 1907. List of laws inapplicable to procurements of commercially available off-the-shelf items (a) 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 for the procurement of commercially available off- the-shelf items. A provision of law properly in- cluded on the list pursuant to paragraph (2) does not apply to contracts for the procure- ment of commercially available off-the-shelf items. This section does not render a provision of law not included on the list inapplicable to contracts for the procurement of commer- cially available off-the-shelf items. (2) LAWS TO BE INCLUDED.—A provision of law described in subsection (b) shall be included on the list of inapplicable provisions of law re- quired by paragraph (1) unless the Adminis- trator makes a written determination that it would not be in the best interest of the Fed- eral Government to exempt contracts for the procurement of commercially available off- the-shelf items from the applicability of the provision. (3) OTHER AUTHORITIES OR RESPONSIBILITIES NOT AFFECTED.—This section does not modify, supersede, impair, or restrict authorities or responsibilities under— (A) section 15 of the Small Business Act (15 U.S.C. 644); or (B) bid protest procedures developed under the authority of— (i) subchapter V of chapter 35 of title 31; (ii) section 3308 of title 10; or (iii) sections 3706 and 3707 of this title. (b) COVERED LAW.—Except as provided in sub- section (a)(3), a provision of law referred to in subsection (a)(1) is a provision of law that the Administrator determines imposes Federal Gov- ernment-unique policies, procedures, require- ments, or restrictions for the procurement of property or services on persons whom the Fed- eral Government has awarded contracts for the procurement of commercially available off-the- shelf items, 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 for the pro- curement of commercially available off-the- shelf items. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3724;Pub. L. 117–81, div. A, title XVII, § 1702(h)(8), Dec. 27, 2021, 135 Stat. 2158.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1907 ............ 41:431(a), (b). Pub. L. 93–400, § 35(a), (b), as added Pub. L. 104–106, title XLII, § 4203(a), Feb. 10, 1996, 110 Stat. 654; Pub. L. 105–85, title X, § 1073(g)(2)(C), Nov. 18, 1997, 111 Stat. 1906. AMENDMENTS 2021—Subsec. (a)(3)(B)(ii). Pub. L. 117–81 substituted ‘‘section 3308’’ for ‘‘section 2305(e) and (f)’’. § 1908. Inflation adjustment of acquisition-re- lated dollar thresholds (a) DEFINITION.—In this section, the term ‘‘Council’’ has the meaning given that term in section 1301 of this title. (b) APPLICATION.— (1) IN GENERAL.—Except as provided in para- graph (2), the requirement for adjustment under subsection (c) applies to a dollar thresh- old that is specified in law as a factor in defin- ing the scope of the applicability of a policy, procedure, requirement, or restriction pro- vided in that law to the procurement of prop- erty or services by an executive agency, as the Council determines. (2) EXCEPTIONS.—Subsection (c) does not apply to dollar thresholds— (A) in chapters 67 and 83 of this title; (B) in sections 3141 to 3144, 3146, and 3147 of title 40; (C) the United States Trade Representa- tive establishes pursuant to title III of the Trade Agreements Act of 1979 (19 U.S.C. 2511 et seq.); or (D) in sections 3131 through 3134 of title 40, except any modification of any such dollar threshold made by regulation in effect on the date of the enactment of this subpara- graph shall remain in effect. (3) RELATIONSHIP TO OTHER INFLATION AD- JUSTMENT AUTHORITIES.—This section super- sedes the applicability of other provisions of law that provide for the adjustment of a dollar threshold that is adjustable under this section. (c) REQUIREMENT FOR PERIODIC ADJUSTMENT.— (1) BASELINE CONSTANT DOLLAR VALUE.—For purposes of paragraph (2), the baseline con- stant dollar value for a dollar threshold— (A) in effect on October 1, 2000, that was first specified in a law that took effect on or before October 1, 2000, is the October 1, 2000, constant dollar value of that dollar thresh- old; and (B) specified in a law that takes effect after October 1, 2000, is the constant dollar value of that threshold as of the effective date of that dollar threshold pursuant to that law. (2) ADJUSTMENT.—On October 1 of each year evenly divisible by 5, the Council shall adjust each acquisition-related dollar threshold pro- vided by law, as described in subsection (b)(1),