§ 4655. Prohibition of contractors limiting subcontractor sales directly to the United States

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1984

   Defense Procurement Reform Act of 1984

   Pub. L. 98–525 title XII § 1234(a) · 98 Stat. 2492

   Enacted · 10 U.S.C. § 4655

   Added Pub. L. 98–525, title XII, § 1234(a), Oct. 19, 1984, 98 Stat. 2601, § 2402

   Source evidence

   Code source credit
   Added Pub. L. 98–525, title XII, § 1234(a), Oct. 19, 1984, 98 Stat. 2601, § 2402

   Enacted provision · exact public law section
   (a) Chapter 141 of title 10, United States Code, as amended by section 1005, is amended by adding at the end thereof the following new sections: “§ 2402. Prohibition of contractors limiting subcontractor sales directly to the United States “(a) Each contract for the purchase of supplies or services made by the Department of Defense shall provide that the contractor will not— “(1) enter into any agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the United States of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or “(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales to the United States described in clause (1). “(b) This section does not prohibit a contractor from asserting rights it otherwise has under law. “§ 2403. Major weapon systems: contractor guarantees “(a) In this section: “(1) ‘Weapon system’ means items that can be used directly by the armed forces to carry out combat missions and that cost more than $100,000 or for which the eventual total procurement cost is more than $10,000,000. Such term does not include commercial items sold in substantial quantities to the general public. “(2) ‘Prime contractor’ means a party that enters into an agreement directly with the United States to furnish part or all of a weapon system. “(3) ‘Design and manufacturing requirements’ means structural and engineering plans and manufacturing particulars, including precise measurements, tolerances, materials, and finished product tests for the weapon system being produced. “(4) ‘Essential performance requirements’, with respect to a weapon system, means the operating capabilities or maintenance and reliability characteristics of the system that are determined by the Secretary of Defense to be necessary for the system to fulfill the military requirement for which the system is designed. “(5) ‘Component’ means any constituent element of a weapon system. “(6) ‘Mature full-scale production’ means the manufacture of all units of a weapon system after the manufacture of the first one-tenth of the eventual total production or the initial production quantity of such system, whichever is less. “(7) ‘Initial production quantity’ means the number of units of a weapon system contracted for in the first year of full-scale production. “(8) ‘Head of an agency’ has the meaning given that term in Ante, p. 2589. section 2302 of this title. “(b) Except as otherwise provided in this section, the head of an agency may not after January 1, 1985, enter into a contract for the production of a weapon system unless each prime contractor for the system provides the United States with written guarantees that— “(1) the item provided under the contract will conform to the design and manufacturing requirements specifically delineated in the production contract (or in any amendment to that contract); “(2) the item provided under the contract, at the time it is delivered to the United States, will be free from all defects in materials and workmanship; “(3) the item provided under the contract will conform to the essential performance requirements of the item as specifically delineated in the production contract (or in any amendment to that contract); and “(4) if the item provided under the contract fails to meet the guarantee specified in clause (1), (2), or (3), the contractor will at the election of the Secretary of Defense or as otherwise provided in the contract— “(A) promptly take such corrective action as may be necessary to correct the failure at no additional cost to the United States; or “(B) pay costs reasonably incurred by the United States in taking such corrective action. “(c) The head of the agency concerned may not require guarantees under subsection (b) from a prime contractor for a weapon system, or for a component of a weapon system, that is furnished by the United States to the contractor. “(d) Subject to subsection (e)(i), the Secretary of Defense may waive part or all of subsection (b) in the case of a weapon system, or component of a weapon system, if the Secretary determines— “(1) that the waiver is necessary in the interest of national defense; or “(2) that a guarantee under that subsection would not be cost-effective. The Secretary may not delegate authority under this subsection to Prohibition. any person who holds a position below the level of Assistant Secretary of Defense or Assistant Secretary of a military department. “(e) (1) Before making a waiver under subsection (d) with respect to a weapon system that is a major defense acquisition program for the purpose of section 139a of this title, the Secretary of Defense shall 10 USC 139a. notify the Committees on Armed Services and on Appropriations of the Senate and House of Representatives in writing of his intention to waive any or all of the requirements of subsection (b) with respect to that system and shall include in the notice an explanation of the reasons for the waiver. “(2) Not later than February 1 of each year, the Secretary of Report. Defense shall submit to the committees specified in paragraph (1) a report identifying each waiver made under subsection (d) during the preceding calendar year for a weapon system that is not a major defense acquisition program for the purpose of section 139a of this title and shall include in the report an explanation of the reasons for the waivers. “(f) The requirement for a guarantee under subsection (b)(3) applies only in the case of a contract for a weapon system that is in mature full-scale production. However, nothing in this section prohibits the head of the agency concerned from negotiating a guarantee similar to the guarantee described in that subsection for a weapon system not yet in mature full-scale production. When a contract for a weapon system not yet in mature full-scale production is not to include the full guarantee described in subsection (b)(3), the Secretary shall comply with the notice requirements of subsection (e). “(g) Nothing in this section prohibits the head of the agency concerned from— “(1) negotiating the specific details of a guarantee, including reasonable exclusions, limitations and time duration, so long as the negotiated guarantee is consistent with the general requirements of this section; “(2) requiring that components of a weapon system furnished by the United States to a contractor be properly installed so as not to invalidate any warranty or guarantee provided by the manufacturer of such component to the United States; “(3) reducing the price of any contract for a weapon system or other defense equipment to take account of any payment due from a contractor pursuant to subclause (B) of subsection (b)(4); “(4) in the case of a dual source procurement, exempting from the requirements of subsection (b)(3) an amount of production by the second source contractor equivalent to the first one-tenth of the eventual total production by the second source contractor; and “(5) using written guarantees to a greater extent than required by this section, including guarantees that exceed those in clauses (1), (2), and (3) of subsection (b) and guarantees that provide more comprehensive remedies than the remedies specified under clause (4) of that subsection. “(h) (1) The Secretary of Defense shall prescribe such regulations Regulations. as may be necessary to carry out this section. “(2) This section does not apply to the Coast Guard or to the National Aeronautics and Space Administration. “§2404. Acquisition of petroleum: authority to waive contract procedures “(a) The Secretary of Defense may, for any purchase of petroleum, waive the application of any provision of law prescribing procedures to be followed in the formation of contracts, prescribing terms and conditions to be included in contracts, or regulating the performance of contracts if the Secretary determines— “(1) that petroleum market conditions have adversely affected (or will in the near future adversely affect) the acquisition of petroleum by the Department of Defense; and “(2) the waiver will expedite or facilitate the acquisition of petroleum for Government needs. “(b) A waiver under subsection (a) may be made with respect to a particular contract or with respect to classes of contracts. Such a waiver that is applicable to a contract for the purchase of petroleum may also be made applicable to a subcontract under that contract. “(c) The Secretary of Defense may acquire petroleum by exchange of petroleum or petroleum derivatives. “(d) The Secretary of Defense shall notify the Congress within 10 days of the date on which any waiver is made under this section and of the reasons for the necessity of exercising such waiver. “(e) In this section, ‘petroleum’ means natural or synthetic crude, blends of natural or synthetic crude, and products refined or derived from natural or synthetic crude or from such blends. “§ 2405. Limitation on adjustment of shipbuilding contracts “(a) The Secretary of a military department may not adjust any price under a shipbuilding contract entered into after December 7, 1983, for an amount set forth in a claim, request for equitable adjustment, or demand for payment under the contract (or incurred due to the preparation, submission, or adjudication of any such claim, request, or demand) arising out of events occurring more than 18 months before the submission of the claim, request, or demand. “(b) For the purposes of subsection (a), a claim, request, or demand shall be considered to have been submitted only when the contractor has provided the certification required by section 6(c)(1) of the Contract Disputes Act of 1978 (41 U.S.C. 605(c)(1)) and the supporting data for the claim, request, or demand.”.

2. 1994

   Pub. L. 103–355 title IV § 4102(f) · 108 Stat. 3243

   Added · 10 U.S.C. § 4655(c); 10 U.S.C. § 4655(d)

   Pub. L. 103–355 added subsecs. (c) and (d)

   Source evidence

   Code amendment note
   Subsecs. (c), (d). Pub. L. 103–355 added subsecs. (c) and (d).

   Enacted provision · exact public law section
   (f) Inapplicability of Prohibition on Limiting Subcontractor Direct Sales to the United States.— Section 2402 of title 10, United States Code, is amended by adding at the end the following new subsection: “(c) This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))).”.

3. 2011

   Pub. L. 111–350 § 5(b)(25)(A) · 124 Stat. 3677

   Substituted · 10 U.S.C. § 4655(c)

   Pub. L. 111–350, § 5(b)(25)(A), substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 111–350, § 5(b)(25)(A), substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”.

   Enacted provision · exact public law section
   (A) in subsection (c), strike “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))” and substitute “section 134 of title 41)”; and

4. 2011

   Pub. L. 111–350 § 5(b)(25)(B) · 124 Stat. 3677

   Substituted · 10 U.S.C. § 4655(d)(2)

   Pub. L. 111–350, § 5(b)(25)(B), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”

   Source evidence

   Code amendment note
   Subsec. (d)(2). Pub. L. 111–350, § 5(b)(25)(B), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.

   Enacted provision · exact public law section
   (B) in subsection (d)(2), strike “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))” and substitute “section 103 of title 41”.

5. 2018

   John S. McCain National Defense Authorization Act for Fiscal Year 2019

   Pub. L. 115–232 § 836(e)(4)(A) · 132 Stat. 1636

   Substituted · 10 U.S.C. § 4655(d)(1)

   Pub. L. 115–232, § 836(e)(4)(A), substituted “commercial products or commercial services” for “commercial items” in two places

   Source evidence

   Code amendment note
   Subsec. (d)(1). Pub. L. 115–232, § 836(e)(4)(A), substituted “commercial products or commercial services” for “commercial items” in two places.

   Enacted provision · exact public law section
   (A) in paragraph (1), by striking “commercial items” both places it appears and inserting “commercial products or commercial services”; and

6. 2018

   John S. McCain National Defense Authorization Act for Fiscal Year 2019

   Pub. L. 115–232 § 836(e)(4)(B) · 132 Stat. 1636

   Substituted · 10 U.S.C. § 4655(d)(2)

   Pub. L. 115–232, § 836(e)(4)(B), substituted “the terms ‘commercial product’ and ‘commercial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.” for “the term ‘commercial item’ has the meaning given such term in section 103 of title 41.”

   Source evidence

   Code amendment note
   Subsec. (d)(2). Pub. L. 115–232, § 836(e)(4)(B), substituted “the terms ‘commercial product’ and ‘commercial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.” for “the term ‘commercial item’ has the meaning given such term in section 103 of title 41.”

   Enacted provision · exact public law section
   (B) in paragraph (2), by striking “the term” and all that follows and inserting “the terms ‘commercial product’ and ‘commercial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.”.

7. 2021

   William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021

   Pub. L. 116–283 div. A title XVIII § 1862(b) · 134 Stat. 3388

   Changed · 10 U.S.C. § 4655

   Pub. L. 116–283 renumbered section 2402 of this title as this section

   Source evidence

   Code amendment note
   Pub. L. 116–283 renumbered section 2402 of this title as this section.

   Enacted provision · exact public law section
   (b) Transfer and Redesignation of Title 10 Sections.— The sections of title 10, United States Code, specified in the left-hand column of the following table are transferred to chapter 363 of such title, as amended by subsection (a), inserted (in the order shown in the following table) after the table of sections at the beginning of such chapter, and redesignated in accordance with the section numbers in the right-hand column, as follows: SectionRedesignated Section 22074651 22494652 23924653 23934654 24024655 24084656 23394657 2410f4658 2410i4659 23354660

   Effective date note
   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.

7 of 7 references resolved to an enrolled provision