41 U.S.C. § 8701 — Definitions

Page 210 TITLE 41—PUBLIC CONTRACTS § 8505 service on the procurement list referred to in section 8503 of this title shall procure the prod- uct or service from a qualified nonprofit agency for the blind or a qualified nonprofit agency for other severely disabled in accordance with regu- lations of the Committee and at the price the Committee establishes if the product or service is available within the period required by the entity. (b) EXCEPTION.—This section does not apply to the procurement of a product that is available from an industry established under chapter 307 of title 18 and that is required under section 4124 of title 18 to be procured from that industry. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3837.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8504 ............ 41:48. June 25, 1938, ch. 697, § 3, 52 Stat. 1196; Pub. L. 92–28, § 1, June 23, 1971, 85 Stat. 80. In subsection (a), the words ‘‘referred to in section 8503 of this title’’ are added for clarity because of the restatement of 41:47(a) in section 8503(a) of the revised title. In subsection (b), the words ‘‘for procurement’’ are omitted as unnecessary. § 8505. Audit For the purpose of audit and examination, the Comptroller General shall have access to the books, documents, papers, and other records of— (1) the Committee and of each central non- profit agency the Committee designates under section 8503(c) of this title; and (2) qualified nonprofit agencies for the blind and qualified nonprofit agencies for other se- verely disabled that have sold products or services under this chapter to the extent those books, documents, papers, and other records relate to the activities of the agency in a fis- cal year in which a sale was made under this chapter. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3838.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8505 ............ 41:48a. June 25, 1938, ch. 697, § 4, 52 Stat. 1196; Pub. L. 92–28, § 1, June 23, 1971, 85 Stat. 81. In this section, before paragraph (1), the words ‘‘or any of his duly authorized representatives’’ are omitted because of 31:711(2). In paragraph (1), the words ‘‘central nonprofit’’ are added for clarity. § 8506. Authorization of appropriations Necessary amounts may be appropriated to the Committee to carry out this chapter. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3838.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8506 ............ 41:48c. June 25, 1938, ch. 697, § 6, 52 Stat. 1196; Pub. L. 92–28, § 1, June 23, 1971, 85 Stat. 82; Pub. L. 93–76, July 30, 1973, 87 Stat. 176; Pub. L. 93–358, § 1(4), July 25, 1974, 88 Stat. 393. The reference to the fiscal year ending June 30, 1974 is omitted as obsolete. CHAPTER 87—KICKBACKS Sec. 8701. Definitions. 8702. Prohibited conduct. 8703. Contractor responsibilities. 8704. Inspection authority. 8705. Administrative offsets. 8706. Civil actions. 8707. Criminal penalties. § 8701. Definitions In this chapter: (1) CONTRACTING AGENCY.—The term ‘‘con- tracting agency’’, when used with respect to a prime contractor, means a department, agen- cy, or establishment of the Federal Govern- ment that enters into a prime contract with a prime contractor. (2) KICKBACK.—The term ‘‘kickback’’ means any money, fee, commission, credit, gift, gra- tuity, thing of value, or compensation of any kind that is provided to a prime contractor, prime contractor employee, subcontractor, or subcontractor employee to improperly obtain or reward favorable treatment in connection with a prime contract or a subcontract relat- ing to a prime contract. (3) PERSON.—The term ‘‘person’’ means a corporation, partnership, business association of any kind, trust, joint-stock company, or in- dividual. (4) PRIME CONTRACT.—The term ‘‘prime con- tract’’ means a contract or contractual action entered into by the Federal Government to ob- tain supplies, materials, equipment, or serv- ices of any kind. (5) PRIME CONTRACTOR.—The term ‘‘prime contractor’’ means a person that has entered into a prime contract with the Federal Gov- ernment. (6) PRIME CONTRACTOR EMPLOYEE.—The term ‘‘prime contractor employee’’ means an offi- cer, partner, employee, or agent of a prime contractor. (7) SUBCONTRACT.—The term ‘‘subcontract’’ means a contract or contractual action en- tered into by a prime contractor or subcon- tractor to obtain supplies, materials, equip- ment, or services of any kind under a prime contract. (8) SUBCONTRACTOR.—The term ‘‘subcon- tractor’’— (A) means a person, other than the prime contractor, that offers to furnish or fur- nishes supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with the prime contract; and (B) includes a person that offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor. Page 211 TITLE 41—PUBLIC CONTRACTS § 8704 (9) SUBCONTRACTOR EMPLOYEE.—The term ‘‘subcontractor employee’’ means an officer, partner, employee, or agent of a subcon- tractor. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3838.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8701 ............ 41:52. Mar. 8, 1946, ch. 80, § 2, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, § 2(a), Nov. 7, 1986, 100 Stat. 3523. In this section, the text of 41:52(3) is omitted because of the definition of ‘‘person’’ in 1:1. In paragraph (2), the words ‘‘directly or indirectly’’ are omitted as unnecessary. SENATE REVISION AMENDMENT Senate amendment 4726 (111th Cong.) added par. (3) and redesignated former pars. (3) to (8) as (4) to (9), re- spectively. See 156 Cong. Rec. 18683 (2010). § 8702. Prohibited conduct A person may not— (1) provide, attempt to provide, or offer to provide a kickback; (2) solicit, accept, or attempt to accept a kickback; or (3) include the amount of a kickback prohib- ited by paragraph (1) or (2) in the contract price— (A) a subcontractor charges a prime con- tractor or a higher tier subcontractor; or (B) a prime contractor charges the Federal Government. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3839.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8702 ............ 41:53. Mar. 8, 1946, ch. 80, § 3, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, § 2(a), Nov. 7, 1986, 100 Stat. 3524. In paragraph (3), before subparagraph (A), the words ‘‘directly or indirectly’’ are omitted as unnecessary. § 8703. Contractor responsibilities (a) REQUIREMENTS INCLUDED IN CONTRACTS.— Each contracting agency shall include in each prime contract awarded by the agency a require- ment that the prime contractor shall— (1) have in place and follow reasonable pro- cedures designed to prevent and detect viola- tions of section 8702 of this title in its own op- erations and direct business relationships; and (2) cooperate fully with a Federal Govern- ment agency investigating a violation of sec- tion 8702 of this title. (b) FULL COOPERATION REQUIRED.—Notwith- standing subsection (d), a prime contractor shall cooperate fully with a Federal Government agency investigating a violation of section 8702 of this title. (c) REPORTING REQUIREMENT.— (1) IN GENERAL.—A prime contractor or sub- contractor that has reasonable grounds to be- lieve that a violation of section 8702 of this title may have occurred shall promptly report the possible violation in writing to the inspec- tor general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the At- torney General. (2) SUPPLYING INFORMATION AS FAVORABLE EVIDENCE.—In an administrative or contrac- tual action to suspend or debar a person who is eligible to enter into contracts with the Federal Government, evidence that the person has supplied information to the Federal Gov- ernment pursuant to paragraph (1) is favorable evidence of the person’s responsibility for the purposes of Federal procurement laws and reg- ulations. (d) INAPPLICABILITY TO CERTAIN PRIME CON- TRACTS.—Subsection (a) does not apply to a prime contract— (1) that is not greater than $100,000; or (2) for the acquisition of commercial prod- ucts or commercial services (as defined in sec- tions 103 and 103a, respectively, of this title). (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3839; Pub. L. 115–232, div. A, title VIII, § 836(b)(20), Aug. 13, 2018, 132 Stat. 1864.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8703(a) ........ 41:57(a), (b). Mar. 8, 1946, ch. 80, § 7, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, § 2(a), Nov. 7, 1986, 100 Stat. 3525; Pub. L. 103–355, title IV, § 4104(a), title VIII, § 8301(c)(1), Oct. 13, 1994, 108 Stat. 3341, 3397; Pub. L. 104–106, div. D, title XLIII, § 4321(g), Feb. 10, 1996, 110 Stat. 675. 8703(b) ........ 41:57(e). 8703(c) ........ 41:57(c). 8703(d) ........ 41:57(d). In subsection (c)(1), the words ‘‘Attorney General’’ are substituted for ‘‘Department of Justice’’ because of 28:503. Editorial Notes AMENDMENTS 2018—Subsec. (d)(2). Pub. L. 115–232 substituted ‘‘com- mercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)’’ for ‘‘commercial items (as defined in section 103 of this title)’’. 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. § 8704. Inspection authority (a) IN GENERAL.—To ascertain whether there has been a violation of section 8702 of this title with respect to a prime contract, the Comp- troller General and the inspector general of the contracting agency, or a representative of the contracting agency designated by the head of the agency if the agency does not have an in-