|
Public Contract Law: US Code
Nota: Rule significa "Federal Rules for Criminal Procedure".
Estas varian de acuerdo a cada Estado.
TITLE 41 - PUBLIC CONTRACTS
Chapter 1. General Provisions
Chapter 2. Termination Of War Contracts
Chapter 3. Procurement Of Supplies And Services By Armed Services
Chapter 4. Procurement Procedures
Chapter 5. Judicial Review Of Administrative Decisions
Chapter 6. Service Contract Labor Standards
Chapter 7. Office Of Federal Procurement Policy
Chapter 8. Federal Grants And Cooperative Agreements
Chapter 9. Contract Disputes
Chapter 10. Drug-Free Workplace
CHAPTER 1 - GENERAL PROVISIONS
Section 1 to 4a. Repealed. Oct. 21, 1941, Ch. 452, 55 Stat. 743
Section 5. Advertisements For Proposals For Purchases And Contracts For
Supplies Or Services For Government Departments; Application To Government
Sales And Contracts To Sell And To Government Corporations
Section 5a. Definitions
Section 50. ''Defense Contractor'' Defined
Section 51. Short Title
Section 52. Definitions
Section 53. Prohibited Conduct
Section 54. Criminal Penalties
Section 55. Civil Actions
Section 56. Administrative Offsets
Section 57. Contractor Responsibilities
Section 58. Inspection Authority
CHAPTER 1 - GENERAL PROVISIONS
Section 5.a. Definitions
The word ''department'' as used in this Act shall be construed toinclude
independent establishments, other agencies, wholly owned Government corporations
(the transactions of which corporations shall be subject to the authorizations
and limitations of this Act, except that section 5 of this title shall
apply to their administrative transactions only), and the government of
the District of Columbia, but shall not include the Senate, House of
Representatives, or office of the Architect of the Capitol, or the officers
or employees thereof. The words ''continental United States'' as used
herein shall be construed to mean the forty-eight States and the District
of Columbia. The word ''Government'' shall be construed to include the
government of the District of Columbia.
The word ''appropriation'' shall be construed as including funds made
available by legislation under section 9104 of title 31.
Section 50. ''Defense contractor'' defined
As used in sections 49 and 50 of this title the term ''defense contractor''
means an employer engaged in - (1) the production, maintenance, or storage
of arms, armament, ammunition, implements of war, munitions, machinery,
tools, clothing, food, fuel, or any articles or supplies, or parts or
ingredients of any articles or supplies; or (2) the construction, reconstruction,
repair, or installation of a building, plant, structure, or facility;
under a contract with the United States or under any contract which the
President, the Secretary of the Army, the Secretary of the Air
Force, the Secretary of the Navy, or the Secretary of Transportation certifies
to such employer to be necessary to the national defense.
Section 52. Definitions
As used in sections 51 to 58 of this title:
Contracting agency , when used with
respect to a prime contractor, means any department, agency, or establishment
of the United States which enters into a prime contract with a prime contractor.
Kickback means any money, fee, commission,
credit, gift, gratuity, thing of value, or compensation of any kind which
is provided, directly or indirectly, to any prime contractor, prime contractor
employee, subcontractor, or subcontractor employee for the purpose of
improperly obtaining or rewarding favorable treatment in connection with
a prime contract or in connection with a subcontract relating to a prime
contract.
Person means a corporation, partnership,
business association of any kind, trust, joint-stock company, or individual.
Prime contract means a contract or
contractual action entered into by the United States for the purpose of
obtaining supplies, materials, equipment, or services of any kind.
Prime contractor means a person who
has entered into a prime contract with the United States
Prime contractor
employee means any officer, partner, employee, or agent of
a prime contractor.
Subcontract means a contract or contractual
action entered into by a prime contractor or subcontractor for the purpose
of obtaining supplies, materials, equipment, or services of any kind under
a prime contract.
Subcontractor (A) means any person,
other than the prime contractor, who offers to furnish or furnishes any
supplies, materials,
equipment, or services of any kind under a prime contract or a subcontract
entered into in connection with such prime contract; and (B) includes
any person who offers to furnish or furnishes general supplies to the
prime contractor or a higher tier subcontractor.
Subcontractor employee means any officer,
partner, employee, or agent of a subcontractor.
Section 53. Prohibited conduct
It is prohibited for any person -
(1) to provide, attempt to provide, or offer to provide any kickback;
(2) to solicit, accept, or attempt to accept any kickback; or
(3) to include, directly or indirectly, the amount of any kickback prohibited
by clause (1) or (2) in the contract price charged by a subcontractor
to a prime contractor or a higher tier subcontractor or in the contract
price charged by a prime contractor to the United States.
Section 54. Criminal penalties
Any person who knowingly and willfully engages in conduct prohibited
by section 53 of this title shall be imprisoned for not more than 10 years
or shall be subject to a fine in accordance with title 18, or both.
Section 55. Civil actions
(a)(1) The United States may, in a civil action, recover a civil penalty
from any person who knowingly engages in conduct prohibited by section
53 of this title. The amount of such civil penalty shall be -
(A) twice the amount of each kickback involved in the violation; and
(B) not more than $10,000 for each occurrence of prohibited conduct.
(2) The United States may, in a civil action, recover a civil penalty
from any person whose employee, subcontractor or subcontractor employee
violates section 53 of this title by providing, accepting, or charging
a kickback. The amount of such civil penalty shall be the amount of that
kickback.
(b) A civil action under this section shall be barred unless the action
is commenced within 6 years after the later of (1) the date on which the
prohibited conduct establishing the cause of action occurred, and (2)
the date on which the United States first knew or should reasonably have
known that the prohibited conduct had occurred.
Section 56. Administrative offsets
(a) Offset authority
A contracting officer of a contracting agency may offset the amount of
a kickback provided, accepted, or charged in violation of section 53 of
this title against any moneys owed by the United States to the prime contractor
under the prime contract to which such kickback relates.
(b) Duties of prime contractor
(1) Upon direction of a contracting officer of a contracting agency with
respect to a prime contract, the prime contractor shall withhold from
any sums owed to a subcontractor under a subcontract of the prime contract
the amount of any kickback which was or may be offset against that prime
contractor under subsection (a) of this section.
(2) Such contracting officer may order that sums withheld under paragraph
(1) - (A) be paid over to the contracting agency; or (B) if the United
States has already offset the amount of such sums against that prime contractor,
be retained by the prime contractor.
(3) The prime contractor shall notify the contracting officer when an
amount is withheld and retained under paragraph (2)(B).
(c) Claim of Government
An offset under subsection (a) of this section or a direction or order
of a contracting officer under subsection (b) of this section is a claim
by the Government for the purposes of the Contract Disputes Act of 1978
(41 U.S.C. 601 et seq.).
(d) ''Contracting officer'' defined
As used in this section, the term ''contracting officer'' has the meaning
given that term for the purposes of the Contract Disputes Act of 1978
(41 U.S.C. 601 et seq.).
Section 57. Contractor responsibilities
(a) Procedural requirements for prevention
and detection of violations
Each contracting agency shall include in each prime contract awarded by
such agency a requirement that the prime contractor shall have in place
and follow reasonable procedures designed to prevent and detect violations
of section 53 of this title in its own operations and direct business
relationships.
(b) Cooperation in investigations requirement
Each contracting agency shall include in each prime contract awarded by
such agency a requirement that the prime contractor shall cooperate fully
with any Federal Government agency investigating a violation of section
53 of this title.
(c) Reporting requirement; supplying information
as favorable evidence of responsibility
(1)(A) Whenever a prime contractor or subcontractor has reasonable grounds
to believe that a violation of section 53 of this title may have occurred,
the prime contractor or subcontractor shall promptly report the possible
violation in writing.
(B) A contractor shall make the reports required by subparagraph (A) to
the inspector general of the contracting agency, the head of the contracting
agency if the agency does not have an inspector general, or the Department
of Justice.
(2) In the case of an administrative or contractual action to suspend
or debar any person who is eligible to enter into contracts with the Federal
Government, evidence that such person has supplied information to the
United States pursuant to paragraph (1) shall be favorable evidence of
such person's responsibility for the purposes of Federal procurement laws
and regulations.
(d) Partial inapplicability to small contracts Subsections
(a) and (b) of this section do not apply to a prime contract that is not
greater than $100,000 or to a prime contract for the acquisition of commercial
items (as defined in section 403(12) of this title).
(e) Cooperation in investigations regardless
of contract amount notwithstanding subsection (d) of this section, a prime
contractor shall cooperate fully with any Federal Government agency investigating
a violation of section 53 of this title.
Section 58. Inspection authority
For the purpose of ascertaining whether there has been a violation of
section 53 of this title with respect to any prime contract, the General
Accounting Office and the inspector general of the contracting agency,
or a representative of such contracting agency designated by the head
of such agency if the agency does not have an inspector general, shall
have access to and may inspect the facilities and audit the books and
records, including any electronic data or records, of any prime contractor
or
subcontractor under a prime contract awarded by such agency. This
section does not apply with respect to a prime contract for the acquisition
of commercial items (as defined in section 403(12) of this title).
CHAPTER 9 - CONTRACT DISPUTES
Section 601. Definitions
Section 602. Applicability Of Law
Section 603. Maritime Contracts
Section 604. Fraudulent Claims
Section 605. Decision By Contracting Officer
Section 606. Contractor'S Right Of Appeal To Board
Of Contract Appeals
Section 607. Agency Boards Of Contract Appeals
Section 608. Small Claims
Section 609. Judicial Review Of Board Decisions
Section 610. Subpena, Discovery, And Deposition
Section 611. Interest
Section 612. Payment Of Claims
Section 613. Separability
Section 601. Definitions
Agency head means the head and any
assistant head of an executive agency, and may ''upon the designation
by'' the head of an executive agency include the chief official of any
principal division of the agency;
Executive agency means an executive
department as defined in section 101 of title 5, an independent establishment
as defined by section 104 of title 5 (except that it shall not include
the General Accounting Office), a military department as defined by section
102 of title 5, and a wholly owned Government corporation as defined by
section 9101(3) of title 31, the United States Postal Service, and the
Postal Rate Commission;
Contracting officer means any person
who, by appointment in accordance with applicable regulations, has the
authority to enter into and administer contracts and make determinations
and findings with respect thereto. The term also includes the authorized
representative of the contracting officer, acting within the limits of
his authority;
Contractor means a party to a Government
contract other than the Government;
Administrator means the Administrator
for Federal Procurement Policy appointed pursuant to the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.); (6) the term ''agency
board'' means an agency board of contract appeals established under section
607 of this title; and
Misrepresentation of fact means a
false statement of substantive fact, or any conduct which leads to a belief
of a substantive fact material to proper understanding of the matter in
hand, made with intent to deceive or mislead.
Section 606. Contractor's right of appeal to
board of contract appeals
Within ninety days from the date of receipt of a contracting officer's
decision under section 605 of this title, the contractor may appeal such
decision to an agency board of contract appeals, as provided in section
607 of this title.
Section 607. Agency boards of contract appeals
(a) Establishment
consultation; Tennessee Valley Authority (1) Except as provided in paragraph
(2) an agency board of contract appeals may be established within an executive
agency when the agency head, after consultation with the Administrator,
determines from a workload study that the volume of contract claims justifies
the establishment of a full-time agency board of at least three members
who shall have no other inconsistent duties. Workload studies will be
updated at least once every three years and submitted to the Administrator.
(2) The Board of Directors of the Tennessee Valley Authority may establish
a board of contract appeals for the Authority of an indeterminate number
of members.
(b) Appointment of members
chairman; compensation (1) Except as provided in paragraph (2), the
members of agency boards shall be selected and appointed to serve in the
same manner as administrative law judges appointed pursuant to section
3105 of title 5, with an additional requirement that such members shall
have had not fewer than five years' experience in public contract law.
Full-time members of agency boards serving as such on the effective date
of this chapter shall be considered qualified. The chairman and vice chairman
of each board shall be designated by the agency head from members so appointed.
Compensation for the chairman, the vice chairman, and all other members
of an agency board shall be determined under section 5372a of title 5.
(2) The Board of Directors of the Tennessee Valley Authority shall establish
criteria for the appointment of members to its agency board of contract
appeals established in subsection (a)(2) of this section, and shall designate
a chairman of such board. The chairman and all other members of such board
shall receive compensation, at the daily equivalent of the rates determined
under section 5372a of title 5, for each day they are engaged in the actual
performance of their duties as members of the board.
(c) Appeals
inter-agency arrangements If the volume of contract claims is not sufficient
to justify an agency board under subsection (a) of this section or if
he otherwise considers it appropriate, any agency head shall arrange for
appeals from decisions by contracting officers of his agency to
be decided by a board of contract appeals of another executive agency.
In the event an agency head is unable to make such an arrangement with
another agency, he shall submit the case to the Administrator for placement
with an agency board. The provisions of this subsection shall not apply
to the Tennessee Valley Authority.
(d) Jurisdiction
Each agency board shall have jurisdiction to decide any appeal from a
decision of a contracting officer (1) relative to a contract made by its
agency, and (2) relative to a contract made by any other agency when such
agency or the Administrator has designated the agency board to decide
the appeal. In exercising this jurisdiction, the agency board is authorized
to grant any relief that would be available to a litigant asserting a
contract claim in the United States Court of Federal Claims.
(e) Decisions
An agency board shall provide to the fullest extent practicable, informal,
expeditious, and inexpensive resolution of disputes, and shall issue a
decision in writing or take other appropriate action on each appeal submitted,
and shall mail or otherwise furnish a copy of the decision to the contractor
and the contracting officer.
(f) Accelerated appeal disposition
The rules of each agency board shall include a procedure for the accelerated
disposition of any appeal from a decision of a contracting officer where
the amount in dispute is $100,000 or less. The accelerated procedure shall
be applicable at the sole election of only the contractor. Appeals under
the accelerated procedure shall be resolved, whenever possible, within
one hundred and eighty days from the date the contractor elects to utilize
such procedure.
(g) Review
(1) The decision of an agency board of contract
appeals shall be final, except that -
(A) a contractor may appeal such a decision to the United States Court
of Appeals for the Federal Circuit within one hundred twenty days after
the date of receipt of a copy of such decision, or
(B) the agency head, if he determines that an appeal should be taken,
and with the prior approval of the Attorney General, transmits the decision
of the board of contract appeals to the Court of Appeals for the Federal
Circuit for judicial review under section 1295 of title 28, within one
hundred and twenty days from the date of the agency's receipt of a copy
of the
board's decision.
(2) Notwithstanding the provisions of paragraph
(1), the decision of the board of contract appeals of the Tennessee Valley
Authority shall be final, except that -
(A) a contractor may appeal such a decision to a United States district
court pursuant to the provisions of section 1337 of title 28, within one
hundred twenty days after the date of receipt of a copy of such decision,
or
(B) The Tennessee Valley Authority may appeal the decision to a United
States district court pursuant to the provisions of section 1337 of title
28, within one hundred twenty days after the date of the decision in any
case.
(3) An award by an arbitrator under this
chapter shall be reviewed pursuant to sections 9 through 13 of title 9,
except that the court may set aside or limit any award that is found to
violate limitations imposed by Federal statute.
(h) Procedural guidelines
Pursuant to the authority conferred under the Office of Federal Procurement
Policy Act (41 U.S.C. 401 et seq.), the Administrator is authorized and
directed, as may be necessary or desirable to carry out the provisions
of this chapter, to issue guidelines with respect to criteria for the
establishment, functions, and procedures of the agency boards (except
for a board established by the Tennessee Valley Authority).
Section 608. Small claims
(a) Accelerated disposition of appeals
The rules of each agency board shall include a procedure for the expedited
disposition of any appeal from a decision of a contracting officer where
the amount in dispute is $50,000 or less. The small claims procedure shall
be applicable at the sole election of the contractor.
(b) Simplified rules of procedure
The small claims procedure shall provide for simplified rules of procedure
to facilitate the decision of any appeal thereunder. Such appeals may
be decided by a single member of the agency board with such concurrences
as may be provided by rule or regulation.
(c) Time of decision
Appeals under the small claims procedure shall be resolved, whenever possible,
within one hundred twenty days from the date on which the contractor elects
to utilize such procedure.
(d) Finality of decision
A decision against the Government or the contractor reached under the
small claims procedure shall be final and conclusive and shall not be
set aside except in cases of fraud.
(e) Effect of decision
Administrative determinations and final decisions under this section shall
have no value as precedent for future cases under this chapter.
(f) Review of requisite amount in controversy
The Administrator is authorized to review at least every three years,
beginning with the third year after November 1, 1978, the dollar amount
defined in subsection (a) of this section as a small claim, and based
upon economic indexes selected by the Administrator adjust that level
accordingly.
Section 609. Judicial review of board decisions
(a) Actions in United States Court of Federal
Claims; district court actions; time for filing
(1) Except as provided in paragraph (2), and in lieu of appealing
the decision of the contracting officer under section 605 of this
title to an agency board, a contractor may bring an action directly
on the claim in the United States Court of Federal Claims,
notwithstanding any contract provision, regulation, or rule of law
to the contrary.
(2) In the case of an action against the Tennessee Valley
Authority, the contractor may only bring an action directly on the
claim in a United States district court pursuant to section 1337 of
title 28, notwithstanding any contract provision, regulation, or
rule of law to the contrary.
(3) Any action under paragraph (1) or (2) shall be filed within
twelve months from the date of the receipt by the contractor of the
decision of the contracting officer concerning the claim, and shall
proceed de novo in accordance with the rules of the appropriate
court.
(b) Finality of board decision
In the event of an appeal by a contractor or the Government from a decision
of any agency board pursuant to section 607 of this title, notwithstanding
any contract provision, regulation, or rules of law to the contrary, the
decision of the agency board on any question of law shall not be final
or conclusive, but the decision on any question of fact shall be final
and conclusive and shall not be set aside unless the decision is fraudulent,
or arbitrary, or capricious, or so grossly erroneous as to necessarily
imply bad faith, or if such decision is not supported by substantial evidence.
(c) Remand or retention of case
In any appeal by a contractor or the Government from a decision of an
agency board pursuant to section 607 of this title, the court may render
an opinion and judgement and remand the case for further action by the
agency board or by the executive agency as appropriate, with such direction
as the court considers just and proper.
(d) Consolidation
If two or more suits arising from one contract are filed in the United
States Court of Federal Claims and one or more agency boards, for the
convenience of parties or witnesses or in the interest of justice, the
United States Court of Federal Claims may order the consolidation of such
suits in that court or transfer any suits to or among the agency boards
involved.
(e) Judgments as to fewer than all claims
In any suit filed pursuant to this chapter involving two or more claims,
counterclaims, cross-claims, or third-party claims, and where a portion
of one such claim can be divided for purposes of decision or judgment,
and in any such suit where multiple parties are involved, the court, whenever
such action is appropriate, may enter a judgment as to one or more but
fewer than all of the claims, portions thereof, or parties.
(f) Advisory opinions
(1) Whenever an action involving an
issue described in paragraph (2) is pending in a district court of the
United States, the district court may request a board of contract appeals
to provide the court with an advisory opinion on the matters of contract
interpretation at issue.
(2) An issue referred to in paragraph
(1) is any issue that could be the proper subject of a final decision
of a contracting officer appealable under this chapter.
(3) A district court shall direct
any request under paragraph (1) to the board of contract appeals having
jurisdiction under this chapter to adjudicate appeals of contract claims
under the contract or contracts being interpreted by the court.
(4) After receiving a request for
an advisory opinion under paragraph (1), a board of contract appeals shall
provide the advisory opinion in a timely manner to the district court
making the request.
Section 610. Subpena, discovery, and deposition
A member of an agency board of contract appeals may administer oaths
to witnesses, authorize depositions and discovery proceedings, and require
by subpena the attendance of witnesses, and production of books and papers,
for the taking of testimony orevidence by deposition or in the hearing
of an appeal by the agency board. In case of contumacy or refusal to obey
a subpena by a person who resides, is found, or transacts business within
the jurisdiction of a United States district court, the court, upon application
of the agency board through the Attorney General; or
upon application by the board of contract appeals of the Tennessee Valley
Authority, shall have jurisdiction to issue the person an order requiring
him to appear before the agency board or a memberthereof, to produce evidence
or to give testimony, or both. Any failure of any such person to obey
the order of the court may be punished by the court as a contempt thereof.
Section 611. Interest
Interest on amounts found due contractors on claims shall be paid to
the contractor from the date the contracting officer receives the claim
pursuant to section 605(a) of this title from the contractor until payment
thereof. The interest provided for in this section shall be paid at the
rate established by the Secretary of the Treasury pursuant to Public Law
92-41 (85 Stat. 97) for the Renegotiation Board.
Section 612. Payment of claims
(a) Judgments
Any judgment against the United States on a claim under this chapter shall
be paid promptly in accordance with the procedures provided by section
1304 of title 31.
(b) Monetary awards
Any monetary award to a contractor by an agency board of contract appeals
shall be paid promptly in accordance with the procedures contained in
subsection (a) of this section.
(c) Reimbursement
Payments made pursuant to subsections (a) and (b) of this section shall
be reimbursed to the fund provided by section 1304 of title 31 by the
agency whose appropriations were used for the contract out of available
funds or by obtaining additional appropriations for such purposes.
(d) Tennessee Valley Authority
(1) Notwithstanding the provisions of subsection (a) through (c) of this
section, any judgment against the Tennessee Valley Authority on a claim
under this chapter shall be paid promptly in accordance with the provisions
of section 831h(b) of title 16.
(2) Notwithstanding the provisions of subsection (a) through (c),any
monetary award to a contractor by the board of contract appeals for the
Tennessee Valley Authority shall be paid in accordance with the provisions
of section 831h(b) of title 16.
Section 613. Separability
If any provision of this chapter, or the application of such provision
to any persons or circumstances, is held invalid, the remainder of this
chapter, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
|
