41 U.S.C. § 1303 — Functions and authority

Page 23 TITLE 41—PUBLIC CONTRACTS § 1303 1 See References in Text note below. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3691.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1301 ............ 41:403(17). Pub. L. 93–400, § 4(17), as added Pub. L. 108–375, title VIII, § 807(b), Oct. 28, 2004, 118 Stat. 2011. § 1302. Establishment and membership (a) ESTABLISHMENT.—There is a Federal Acqui- sition Regulatory Council to assist in the direc- tion and coordination of Government-wide pro- curement policy and Government-wide procure- ment regulatory activities in the Federal Gov- ernment. (b) MEMBERSHIP.— (1) MAKEUP OF COUNCIL.—The Council con- sists of— (A) the Administrator; (B) the Secretary of Defense; (C) the Administrator of National Aero- nautics and Space; and (D) the Administrator of General Services. (2) DESIGNATION OF OTHER OFFICIALS.— (A) OFFICIALS WHO MAY BE DESIGNATED.— Notwithstanding section 121(d)(1) and (2) of title 40, the officials specified in subpara- graphs (B) to (D) of paragraph (1) may des- ignate to serve on and attend meetings of the Council in place of that official— (i) the official assigned by statute with the responsibility for acquisition policy in each of their respective agencies or, in the case of the Secretary of Defense, an offi- cial at an organizational level not lower than an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition and Sustainment; or (ii) if no official of that agency is as- signed by statute with the responsibility for acquisition policy for that agency, the official designated pursuant to section 1702(c) of this title. (B) LIMITATION ON DESIGNATION.—No other official or employee may be designated to serve on the Council. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3691; Pub. L. 116–92, div. A, title IX, § 902(88), Dec. 20, 2019, 133 Stat. 1554.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1302(a) ........ 41:421(a). Pub. L. 93–400, § 25(a), (b), as added Pub. L. 100–679, § 4, Nov. 17, 1988, 102 Stat. 4056; Pub. L. 101–510, title VIII, § 807, Nov. 5, 1990, 104 Stat. 1593; Pub. L. 104–106, title XLIII, § 4322(a)(2), Feb. 10, 1996, 110 Stat. 677. 1302(b) ........ 41:421(b). In subsection (a), the words ‘‘(hereinafter in this sec- tion referred to as the ‘Council’)’’ are omitted as unnec- essary. In subsection (b)(2)(A)(i), the words ‘‘Under Secretary of Defense for Acquisition, Technology, and Logistics’’ are substituted for ‘‘Under Secretary of Defense for Ac- quisition and Technology’’ because of section 911(a)(1) of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65, 113 Stat. 717, 10 U.S.C. 133 note). In subsection (b)(2)(A)(ii), the cross-reference to sec- tion 16(3) of the Office of Federal Procurement Policy Act (41:414(3)) is treated as a cross-reference to section 16(c) of the Act to reflect the amendment of section 16 by section 1421(a)(1) of the National Defense Authoriza- tion Act for Fiscal Year 2004 (Public Law 108–136, 117 Stat. 1666). Editorial Notes AMENDMENTS 2019—Subsec. (b)(2)(A)(i). Pub. L. 116–92 substituted ‘‘Under Secretary of Defense for Acquisition and Sustainment’’ for ‘‘Under Secretary of Defense for Ac- quisition, Technology, and Logistics’’. Statutory Notes and Related Subsidiaries STATUS OF DIRECTOR OF DEFENSE PROCUREMENT Pub. L. 102–190, div. A, title VIII, § 809, Dec. 5, 1991, 105 Stat. 1423, as amended by Pub. L. 103–160, div. A, title IX, § 904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, § 911(a)(1), Oct. 5, 1999, 113 Stat. 717, pro- vided that: ‘‘For the purposes of the amendment made by section 807 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1593) to section 25(b)(2) of the Office of Federal Procure- ment Policy Act ([former] 41 U.S.C. 421(b)(2)) [now 41 U.S.C. 1302(b)(2)], the Director of Defense Procurement of the Department of Defense shall be considered to be an official at an organizational level of an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics.’’ § 1303. Functions and authority (a) FUNCTIONS.— (1) ISSUE AND MAINTAIN FEDERAL ACQUISITION REGULATION.—Subject to sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title, the Administrator of General Services, the Secretary of Defense, and the Adminis- trator of National Aeronautics and Space, pur- suant to their respective authorities under di- vision C of this subtitle, chapter 4 of title 10, chapter 137 legacy provisions (as such term is defined in section 3016 of title 10), and the Na- tional Aeronautics and Space Act of 1958 (42 U.S.C. 2451 et seq.),1 shall jointly issue and maintain in accordance with subsection (d) a single Government-wide procurement regula- tion, to be known as the Federal Acquisition Regulation. (2) LIMITATION ON OTHER REGULATIONS.— Other regulations relating to procurement issued by an executive agency shall be limited to— (A) regulations essential to implement Government-wide policies and procedures within the agency; and (B) additional policies and procedures re- quired to satisfy the specific and unique needs of the agency. (3) ENSURE CONSISTENT REGULATIONS.—The Administrator, in consultation with the Coun- cil, shall ensure that procurement regulations prescribed by executive agencies are con- sistent with the Federal Acquisition Regula- Page 24 TITLE 41—PUBLIC CONTRACTS § 1303 tion and in accordance with the policies pre- scribed pursuant to section 1121(b) of this title. (4) REQUEST TO REVIEW REGULATION.— (A) BASIS FOR REQUEST.—Under procedures the Administrator establishes, a person may request the Administrator to review a regu- lation relating to procurement on the basis that the regulation is inconsistent with the Federal Acquisition Regulation. (B) PERIOD OF REVIEW.—Unless the request is frivolous or does not, on its face, state a valid basis for the review, the Administrator shall complete the review not later than 60 days after receiving the request. The time for completion of the review may be ex- tended if the Administrator determines that an additional period of review is required. The Administrator shall advise the re- quester of the reasons for the extension and the date by which the review will be com- pleted. (5) WHEN REGULATION IS INCONSISTENT OR NEEDS TO BE IMPROVED.—If the Administrator determines that a regulation relating to pro- curement is inconsistent with the Federal Ac- quisition Regulation or that the regulation otherwise should be revised to remove an in- consistency with the policies prescribed under section 1121(b) of this title, the Administrator shall rescind or deny the promulgation of the regulation or take other action authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title as may be nec- essary to remove the inconsistency. If the Ad- ministrator determines that the regulation, although not inconsistent with the Federal Acquisition Regulation or those policies, should be revised to improve compliance with the Regulation or policies, the Administrator shall take action authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 as may be necessary and appropriate. (6) DECISIONS TO BE IN WRITING AND PUBLICLY AVAILABLE.—The decisions of the Adminis- trator shall be in writing and made publicly available. (b) ADDITIONAL RESPONSIBILITIES OF MEMBER- SHIP.— (1) IN GENERAL.—Subject to the authority, direction, and control of the head of the agen- cy concerned, each official who represents an agency on the Council pursuant to section 1302(b) of this title shall— (A) approve or disapprove all regulations relating to procurement that are proposed for public comment, prescribed in final form, or otherwise made effective by that agency before the regulation may be prescribed in final form, or otherwise made effective, ex- cept that the official may grant an interim approval, without review, for not more than 60 days for a procurement regulation in ur- gent and compelling circumstances; (B) carry out the responsibilities of that agency set forth in chapter 35 of title 44 for each information collection request that re- lates to procurement rules or regulations; and (C) eliminate or reduce— (i) any redundant or unnecessary levels of review and approval in the procurement system of that agency; and (ii) redundant or unnecessary procure- ment regulations which are unique to that agency. (2) LIMITATION ON DELEGATION.—The author- ity to review and approve or disapprove regu- lations under paragraph (1)(A) may not be del- egated to an individual outside the office of the official who represents the agency on the Council pursuant to section 1302(b) of this title. (c) GOVERNING POLICIES.—All actions of the Council and of members of the Council shall be in accordance with and furtherance of the poli- cies prescribed under section 1121(b) of this title. (d) GENERAL AUTHORITY WITH RESPECT TO FED- ERAL ACQUISITION REGULATION.—Subject to sec- tion 1121(d) of this title, the Council shall man- age, coordinate, control, and monitor the main- tenance of, issuance of, and changes in, the Fed- eral Acquisition Regulation. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3691; Pub. L. 117–81, div. A, title XVII, § 1702(h)(2), Dec. 27, 2021, 135 Stat. 2158 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1303(a) ........ 41:421(c). Pub. L. 93–400, § 25(c)–(f), as added Pub. L. 100–679, § 4, Nov. 17, 1988, 102 Stat. 4056; Pub. L. 104–201, title VIII, § 822, title X, § 1074(f)(3), Sept. 23, 1996, 110 Stat. 2609, 2661; Pub. L. 105–85, title VIII, § 841(d), Nov. 18, 1997, 111 Stat. 1843. 1303(b) ........ 41:421(d). 1303(c) ........ 41:421(e). 1303(d) ........ 41:421(f). In subsection (a)(6), the text of 41:421(c)(6) (last sen- tence) is omitted because 41:407 was repealed by section 4305(b) of the National Defense Authorization Act of Fiscal Year 1996 (Public Law 104–106, 110 Stat. 665). In subsection (b)(1)(A), the words ‘‘after 60 days after November 17, 1988’’ are omitted as obsolete. In subsection (b)(1)(B), the words ‘‘(as that term is de- fined in section 3502(11) of title 44)’’ are omitted be- cause chapter 35 of title 44 was amended generally by the Paperwork Reduction Act of 1995 (Public Law 104–13, 109 Stat. 163) and 44:3502 no longer defines ‘‘infor- mation collection request’’. The term ‘‘information col- lection request’’ is retained in this section of the re- vised title, however, because 44:ch. 35 still contains pro- visions about requests for collection of information. Editorial Notes REFERENCES IN TEXT The National Aeronautics and Space Act of 1958, re- ferred to in subsec. (a)(1), is Pub. L. 85–568, July 29, 1958, 72 Stat. 426, which was classified principally to chapter 26 (§ 2451 et seq.) of Title 42, The Public Health and Wel- fare, and was substantially repealed and restated as chapter 201 (§ 20101 et seq.) of Title 51, National and Commercial Space Programs, by Pub. L. 111–314, §§ 3, 6, Dec. 18, 2010, 124 Stat. 3328, 3444. For complete classi- fication of this Act to the Code, see Short Title of 1958 Act note set out under section 10101 of Title 51 and Ta- bles. AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–81 substituted ‘‘chap- ter 4 of title 10, chapter 137 legacy provisions (as such Page 25 TITLE 41—PUBLIC CONTRACTS § 1304 term is defined in section 3016 of title 10)’’ for ‘‘chapters 4 and 137 of title 10’’. § 1304. Contract clauses and certifications (a) REPETITIVE NONSTANDARD CONTRACT CLAUSES DISCOURAGED.—The Council shall pre- scribe regulations to discourage the use of a nonstandard contract clause on a repetitive basis. The regulations shall include provisions that— (1) clearly define what types of contract clauses are to be treated as nonstandard clauses; and (2) require prior approval for the use of a nonstandard clause on a repetitive basis by an official at a level of responsibility above the contracting officer. (b) WHEN CERTIFICATION REQUIRED.— (1) BY LAW.—A provision of law may not be construed as requiring a certification by a contractor or offeror in a procurement made or to be made by the Federal Government un- less that provision of law specifically provides that such a certification shall be required. (2) IN FEDERAL ACQUISITION REGULATION.—A requirement for a certification by a contractor or offeror may not be included in the Federal Acquisition Regulation unless— (A) the certification requirement is spe- cifically imposed by statute; or (B) written justification for the certifi- cation requirement is provided to the Ad- ministrator by the Council and the Adminis- trator approves in writing the inclusion of the certification requirement. (3) EXECUTIVE AGENCY PROCUREMENT REGULA- TION.— (A) DEFINITION.—In subparagraph (B), the term ‘‘head of the executive agency’’ with respect to a military department means the Secretary of Defense. (B) WHEN CERTIFICATION REQUIREMENT MAY BE INCLUDED IN REGULATION.—A requirement for a certification by a contractor or offeror may not be included in a procurement regu- lation of an executive agency unless— (i) the certification requirement is spe- cifically imposed by statute; or (ii) written justification for the certifi- cation requirement is provided to the head of the executive agency by the senior pro- curement executive of the agency and the head of the executive agency approves in writing the inclusion of the certification requirement. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3693.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1304(a) ........ 41:425(a). Pub. L. 93–400, § 29, as added Pub. L. 103–355, title I, § 1093, Oct. 13, 1994, 108 Stat. 3273; Pub. L. 104–106, title XLIII, § 4301(b)(2)(A), (c), Feb. 10, 1996, 110 Stat. 657, 658. 1304(b)(1) .... 41:425(b). 1304(b)(2), (3). 41:425(c). Statutory Notes and Related Subsidiaries CURRENT CERTIFICATION REQUIREMENTS Pub. L. 104–106, div. D, title XLIII, § 4301(b)(1), Feb. 10, 1996, 110 Stat. 656, provided that: ‘‘(A) Not later than 210 days after the date of the en- actment of this Act [Feb. 10, 1996], the Administrator for Federal Procurement Policy shall issue for public comment a proposal to amend the Federal Acquisition Regulation to remove from the Federal Acquisition Regulation certification requirements for contractors and offerors that are not specifically imposed by stat- ute. The Administrator may omit such a certification requirement from the proposal only if— ‘‘(i) the Federal Acquisition Regulatory Council provides the Administrator with a written justifica- tion for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and ‘‘(ii) the Administrator approves in writing the re- tention of the certification requirement. ‘‘(B)(i) Not later than 210 days after the date of the enactment of this Act, the head of each executive agen- cy that has agency procurement regulations containing one or more certification requirements for contractors and offerors that are not specifically imposed by stat- ute shall issue for public comment a proposal to amend the regulations to remove the certification require- ments. The head of the executive agency may omit such a certification requirement from the proposal only if— ‘‘(I) the senior procurement executive for the exec- utive agency provides the head of the executive agen- cy with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification require- ment; and ‘‘(II) the head of the executive agency approves in writing the retention of such certification require- ment. ‘‘(ii) For purposes of clause (i), the term ‘head of the executive agency’ with respect to a military depart- ment means the Secretary of Defense.’’ Executive Documents ADDRESSING TAX DELINQUENCY BY GOVERNMENT CONTRACTORS Memorandum of President of the United States, Jan. 20, 2010, 75 F.R. 3979, provided: Memorandum for the Heads of Executive Depart- ments and Agencies The Federal Government pays more than half a tril- lion dollars a year to contractors and has an important obligation to protect American taxpayer money and the integrity of the Federal acquisition process. Yet re- ports by the Government Accountability Office (GAO) state that Federal contracts are awarded to tens of thousands of companies with serious tax delinquencies. The total amount in unpaid taxes owed by these con- tracting companies is estimated to be more than $5 bil- lion. Too often, Federal contracting officials do not have the most basic information they need to make in- formed judgments about whether a company trying to win a Federal contract is delinquent in paying its taxes. We need to give our contracting officials the tools they need to protect taxpayer dollars. Accordingly, I hereby direct the Commissioner of In- ternal Revenue (Commissioner) to direct a review of certifications of non-delinquency in taxes that compa- nies bidding for Federal contracts are required to sub- mit pursuant to a 2008 amendment to the Federal Ac- quisition Regulation. I further direct that the Commis- sioner report to me within 90 days on the overall accu- racy of contractors’ certifications. I also direct the Director of the Office of Management and Budget, working with the Secretary of the Treas-