10 U.S.C. § 4508 — Contractor performance of acquisition

Page 2785 TITLE 10—ARMED FORCES § 4508 2001—Pub. L. 107–107 substituted ‘‘Procurement of services: contracts’’ for ‘‘Contracts’’ in section catch- line. 1994—Subsec. (c). Pub. L. 103–355 struck out text and heading of subsec. (c). Text read as follows: ‘‘(1) The Secretary of Defense may waive the limita- tion in section 2304(j)(4) of this title on the total value of task orders for specific contracting activities to the extent the Secretary considers the use of master agree- ments necessary in order to further the policy set forth in subsection (a). ‘‘(2) During any fiscal year, such a waiver may not in- crease the total value of task orders under master agreements of a contracting activity by more than 20 percent of the value of all contracts for advisory and assistance services awarded by that contracting activ- ity during fiscal year 1989. ‘‘(3) Such a waiver shall not become effective until 60 days after the Secretary of Defense has published no- tice thereof in the Federal Register.’’ 1991—Subsec. (c)(1). Pub. L. 102–25 struck out ‘‘on a case-by-case basis’’ after ‘‘value of task orders’’, sub- stituted ‘‘considers the use of master agreements nec- essary’’ for ‘‘considers necessary the use of master agreements’’, and struck out ‘‘of this section’’ before period at end. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT 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 OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title. REGULATIONS Pub. L. 101–510, div. A, title VIII, § 834(b), Nov. 5, 1990, 104 Stat. 1614, provided that: ‘‘Not later than 180 days after the date of the enactment of this Act [Nov. 5, 1990], the Secretary of Defense shall publish for public comment new regulations to carry out the require- ments in this section [enacting this section]. The Sec- retary shall promulgate final regulations to carry out such requirements not later than 270 days after the date of the enactment of this Act.’’ PROVISIONS NOT AFFECTED BY PUB. L. 103–355 Repeal of subsec. (c) of this section by Pub. L. 103–355 not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or respon- sibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note pre- ceding section 3401 of this title. § 4508. Contractor performance of acquisition functions closely associated with inherently governmental functions (a) LIMITATION.—The head of an agency may enter into a contract for the performance of ac- quisition functions closely associated with in- herently governmental functions only if the contracting officer for the contract ensures that— (1) appropriate military or civilian personnel of the Department of Defense cannot reason- ably be made available to perform the func- tions; (2) appropriate military or civilian personnel of the Department of Defense are— (A) to supervise contractor performance of the contract; and (B) to perform all inherently governmental functions associated with the functions to be performed under the contract; and (3) the agency addresses any potential orga- nizational conflict of interest of the con- tractor in the performance of the functions under the contract, consistent with subpart 9.5 of part 9 of the Federal Acquisition Regulation and the best interests of the Department of Defense. (b) DEFINITIONS.—In this section: (1) The term ‘‘head of an agency’’ does not include the Secretary of Homeland Security or the Administrator of the National Oceanic and Atmospheric Administration. (2) The term ‘‘inherently governmental func- tions’’ has the meaning given such term in subpart 7.5 of part 7 of the Federal Acquisition Regulation. (3) The term ‘‘functions closely associated with inherently governmental functions’’ means the functions described in section 7.503(d) of the Federal Acquisition Regulation. (4) The term ‘‘organizational conflict of in- terest’’ has the meaning given such term in subpart 9.5 of part 9 of the Federal Acquisition Regulation. (Added Pub. L. 108–375, div. A, title VIII, § 804(a)(1), Oct. 28, 2004, 118 Stat. 2007, § 2383; re- numbered § 4508 and amended Pub. L. 116–283, div. A, title XVIII, § 1856(g), (i), Jan. 1, 2021, 134 Stat. 4275.) Editorial Notes PRIOR PROVISIONS A prior section 4508, acts Aug. 10, 1956, ch. 1041, 70A Stat. 253; Nov. 2, 1966, Pub. L. 89–718, § 27, 80 Stat. 1119, which related tests of iron, steel, and other materials, was repealed by Pub. L. 103–160, div. A, title VIII, § 822(b)(3), Nov. 30, 1993, 107 Stat. 1706. AMENDMENTS 2021—Pub. L. 116–283 renumbered section 2383 of this title as this section. Subsec. (b)(1). Pub. L. 116–283, § 1856(i), which directed striking out ‘‘has the meaning given in section 2302(1) of this title, except that such term’’, was executed by striking out ‘‘has the meaning given such term in sec- tion 2302(1) of this title, except that such term’’ before ‘‘does not include’’, to reflect the probable intent of Congress. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT 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. 108–375, div. A, title VIII, § 804(b), Oct. 28, 2004, 118 Stat. 2008, provided that: ‘‘Section 2383 of title 10, United States Code [now 10 U.S.C. 4508] (as added by subsection (a)), shall apply to contracts entered into on or after the date of the enactment of this Act [Oct. 28, 2004].’’ Page 2786 TITLE 10—ARMED FORCES § 4509 § 4509. Contracts for advisory and assistance services: cost comparison studies (a) REQUIREMENT.—(1)(A) Before the Secretary of Defense enters into a contract described in subparagraph (B), the Secretary shall determine whether Department of Defense personnel have the capability to perform the services proposed to be covered by the contract. (B) Subparagraph (A) applies to any contract of the Department of Defense for advisory and assistance services that is expected to have a value in excess of $100,000. (2) If the Secretary determines that Depart- ment of Defense personnel have the capability to perform the services to be covered by the con- tract, the Secretary shall conduct a study com- paring the cost of performing the services with Department of Defense personnel and the cost of performing the services with contractor per- sonnel. (b) WAIVER.—The Secretary of Defense may, pursuant to guidelines prescribed by the Sec- retary, waive the requirement to perform a cost comparison study under subsection (a)(2) based on factors that are not related to cost. (Added Pub. L. 103–337, div. A, title III, § 363(a)(1), Oct. 5, 1994, 108 Stat. 2733, § 2410l; re- numbered § 4509, Pub. L. 116–283, div. A, title XVIII, § 1856(g), Jan. 1, 2021, 134 Stat. 4275.) Editorial Notes PRIOR PROVISIONS A prior section 4531, act Aug. 10, 1956, ch. 1041, 70A Stat. 253, authorized Secretary of the Army to procure materials and facilities necessary to maintain and sup- port the Army, prior to repeal by Pub. L. 103–160, div. A, title VIII, § 823(2), Nov. 30, 1993, 107 Stat. 1707. A prior section 4532 was renumbered section 7532 of this title. Prior sections 4533 to 4535 were repealed by Pub. L. 103–160, div. A, title VIII, § 823(3)–(5), Nov. 30, 1993, 107 Stat. 1707. Section 4533, act Aug. 10, 1956, ch. 1041, 70A Stat. 254, related to purchases of army rations. Section 4534, act Aug. 10, 1956, ch. 1041, 70A Stat. 254, related to subsistence supplies, contract stipulations, and place of delivery on inspection. Section 4535, act Aug. 10, 1956, ch. 1041, 70A Stat. 254, provided that exceptional subsistence supplies could be purchased without advertising. A prior section 4536 was renumbered section 7536 of this title. Prior sections 4537 and 4538 were repealed by Pub. L. 103–160, div. A, title VIII, § 823(6), (7), Nov. 30, 1993, 107 Stat. 1707. Section 4537, acts Aug. 10, 1956, ch. 1041, 70A Stat. 254; Nov. 2, 1966, Pub. L. 89–718, § 8(a), 80 Stat. 1117; Dec. 12, 1980, Pub. L. 96–513, title V, § 512(14), 94 Stat. 2930, au- thorized Secretary of the Army to obtain assistance of United States mapping agencies in making and devel- oping military surveys and maps. Section 4538, acts Aug. 10, 1956, ch. 1041, 70A Stat. 255; Dec. 12, 1980, Pub. L. 96–513, title V, § 512(15), 94 Stat. 2930, related to exchange and reclamation of unservice- able ammunition. A prior section 4539, act Aug. 10, 1956, ch. 1041, 70A Stat. 255, provided for purchase of horses and mules in open market at Army posts, within maximum prices prescribed by Secretary of the Army, prior to repeal by Pub. L. 91–482, § 1(a), Oct. 21, 1970, 84 Stat. 1082. A prior section 4540 was renumbered section 7540 of this title. Another prior section 4541 was renumbered section 7541 of this title. Prior sections 4542 to 4544, 4551 to 4555, and 4561 to 4565 were renumbered sections 7542 to 7544, 7551 to 7555, and 7561 to 7565 of this title, respectively. AMENDMENTS 2021—Pub. L. 116–283 renumbered section 2410l of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT 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. 103–337, div. A, title III, § 363(c), Oct. 5, 1994, 108 Stat. 2734, provided that: ‘‘Section 2410l of title 10, United States Code [now 10 U.S.C. 4509], as added by subsection (a), shall take effect 180 days after the date of the enactment of this Act [Oct. 5, 1994].’’ PROCEDURES FOR CONDUCT OF STUDIES Pub. L. 103–337, div. A, title III, § 363(b), Oct. 5, 1994, 108 Stat. 2734, provided that: ‘‘The Secretary of Defense shall prescribe the following procedures: ‘‘(1) Procedures for carrying out a cost comparison study under subsection (a)(2) of section 2410l of title 10, United States Code [now 10 U.S.C. 4509(a)(2)], as added by subsection (a), which may contain a require- ment that the cost comparison study include consid- eration of factors that are not related to cost, includ- ing the quality of the service required to be per- formed, the availability of Department of Defense personnel, the duration and recurring nature of the services to be performed, and the consistency of the workload. ‘‘(2) Procedures for reviewing contracts entered into after a waiver under subsection (b) of such sec- tion to determine whether the contract is justified and sufficiently documented.’’ CHAPTER 343—[RESERVED] Subchapter Sec. I. [Reserved] .............................................. 4541 II. [Reserved] .............................................. 4551 Editorial Notes PRIOR PROVISIONS A prior chapter 343 ‘‘ACQUISITION OF SERVICES’’, consisting of reserved section 4541, was repealed by Pub. L. 116–283, div. A, title XVIII, § 1856(b), Jan. 1, 2021, 134 Stat. 4273. Another prior chapter 343 was renumbered chapter 723 of this title. AMENDMENTS Pub. L. 117–81, div. A, title XVII, § 1701(i)(9)(B), Dec. 27, 2021, 135 Stat. 2142, generally amended the text in- serted by Pub. L. 116–283, div. A, title XVIII, § 1856(j), Jan. 1, 2021, 134 Stat. 4276, which added this chapter, re- sulting in substitution of ‘‘[RESERVED]’’ for ‘‘ACQUI- SITION OF SERVICES OF CONTRACTORS PER- FORMING PRIVATE SECURITY FUNCTIONS’’ in chapter heading and ‘‘[Reserved]’’ for ‘‘Contractors Performing Private Security Functions in Areas of Combat Operations or Other Significant Military Oper- ations’’ in item for subchapter I and for ‘‘Standards and Certification for Private Security’’ in item for sub- chapter II. SUBCHAPTER I—[RESERVED] Sec. 4541. [Reserved].