41 U.S.C. § 4308 — Penalties for submission of cost known to

Page 134 TITLE 41—PUBLIC CONTRACTS § 4306 (2) PRESENCE OF CONTRACT AUDITOR.—The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, a contract auditor be present at any negotiation or meeting with the contractor regarding a de- termination of the allowability of indirect costs of the contractor. (3) SETTLEMENT TO REFLECT AMOUNT OF INDI- VIDUAL QUESTIONED COSTS.—The Federal Acqui- sition Regulation shall require that all cat- egories of costs designated in the report of a contract auditor as questioned with respect to a proposal for settlement be resolved in a manner so that the amount of the individual questioned costs that are paid will be reflected in the settlement. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3787.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4305(a) ........ 41:256(f)(1) (1st, 2d sentences). June 30, 1949, ch. 288, title III, § 306(f), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3312. 4305(b) ........ 41:256(f)(1) (last sen- tence). 4305(c) ........ 41:256(f)(2)–(4). § 4306. Applicability of regulations to subcontrac- tors The regulations referred to in sections 4304 and 4305(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provi- sions of those regulations to all subcontractors of the covered contract. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4306 ............ 41:256(g). June 30, 1949, ch. 288, title III, § 306(g), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313. § 4307. Contractor certification (a) CONTENT AND FORM.—A proposal for settle- ment of indirect costs applicable to a covered contract shall include a certification by an offi- cial of the contractor that, to the best of the certifying official’s knowledge and belief, all in- direct costs included in the proposal are allow- able. The certification shall be in a form pre- scribed in the Federal Acquisition Regulation. (b) WAIVER.—An executive agency may, in an exceptional case, waive the requirement for cer- tification under subsection (a) in the case of a contract if the agency— (1) determines that it would be in the inter- est of the Federal Government to waive the certification; and (2) states in writing the reasons for the de- termination and makes the determination available to the public. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4307 ............ 41:256(h). June 30, 1949, ch. 288, title III, § 306(h), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313. § 4308. Penalties for submission of cost known to be unallowable The submission to an executive agency of a proposal for settlement of costs for any period after those costs have been accrued that in- cludes a cost that is expressly specified by stat- ute or regulation as being unallowable, with the knowledge that the cost is unallowable, is sub- ject to section 287 of title 18 and section 3729 of title 31. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4308 ............ 41:256(i). June 30, 1949, ch. 288, title III, § 306(i), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313. § 4309. Burden of proof on contractor In a proceeding before a board of contract ap- peals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a con- tractor seeks reimbursement from the Federal Government is in issue, the burden of proof is on the contractor to establish that those costs are reasonable. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3788.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4309 ............ 41:256(j). June 30, 1949, ch. 288, title III, § 306(j), as added Pub. L. 100–700, § 8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, § 2151, Oct. 13, 1994, 108 Stat. 3313. § 4310. Proceeding costs not allowable (a) DEFINITIONS.—In this section: (1) COSTS.—The term ‘‘costs’’, with respect to a proceeding, means all costs incurred by a contractor, subcontractor, or personal services contractor, whether before or after the com- mencement of the proceeding, including— (A) administrative and clerical expenses; (B) the cost of legal services, including legal services performed by an employee of the contractor, subcontractor, or personal services contractor; (C) the cost of the services of accountants and consultants retained by the contractor, subcontractor, or personal services con- tractor; and (D) the pay of directors, officers, and em- ployees of the contractor, subcontractor, or