CHAPTER 363—PROHIBITION AND PENALTIES
4651.
Expenditure of appropriations: limitation.
4652.
Prohibition on use of funds for documenting economic or employment impact of certain acquisition programs.
4653.
Prohibition on use of funds to relieve economic dislocations.
4654.
Prohibition on doing business with certain offerors or contractors.
4655.
Prohibition of contractors limiting subcontractor sales directly to the United States.
4656.
Prohibition on persons convicted of defense-contract related felonies and related criminal penalty on defense contractors.
4657.
Prohibition on criminal history inquiries by contractors prior to conditional offer.
4658.
Debarment of persons convicted of fraudulent use of "Made in America" labels.
4659.
Prohibition on contracting with entities that comply with the secondary Arab boycott of Israel.
4660.
Prohibition on collection of political information.
4661.
Prohibition on certain procurements from the Xinjiang Uyghur Autonomous Region.
4662.
Prohibition on the transfer of certain data on employees of the Department of Defense to third parties.
Editorial Notes
Prior Provisions
A prior chapter 363 "PROHIBITIONS AND PENALTIES", consisting of reserved section 4651, was repealed by Pub. L. 116–283, div. A, title XVIII, §1862(a), Jan. 1, 2021, 134 Stat. 4277.
Another prior chapter 363, consisting of sections 3841 to 3855 relating to separation or transfer to the Retired Reserve, some of which had previously been repealed, was repealed in its entirety by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.
Amendments
2023—Pub. L. 118–31, div. A, title VIII, §803, Dec. 22, 2023, 137 Stat. 312, added item 4662. Amendment was made pursuant to operation of section 102 of this title.
2022—Pub. L. 117–263, div. A, title VIII, §855(c), Dec. 23, 2022, 136 Stat. 2723, added item 4661.
Statutory Notes and Related Subsidiaries
Prohibition on Availability of Funds for Procurement of Certain Batteries
Pub. L. 118–31, div. A, title I, §154, Dec. 22, 2023, 137 Stat. 180, provided that:
"(a) Limitation.—Beginning on October 1, 2027, none of the funds authorized to be appropriated or otherwise made available for the Department of Defense may be obligated or expended to procure a battery produced by an entity specified in subsection (b).
"(b) Entities Specified.—The entities specified in this subsection are the following:
"(1) Contemporary Amperex Technology Company, Limited (also known as 'CATL').
"(2) BYD Company, Limited.
"(3) Envision Energy, Limited.
"(4) EVE Energy Company, Limited.
"(5) Gotion High tech Company, Limited.
"(6) Hithium Energy Storage Technology company, Limited.
"(7) Any successor to an entity specified in paragraphs (1) through (6).
"(c) Treatment of Production.—For purposes of this section, a battery shall be treated as produced by an entity specified in subsection (b) if that entity—
"(1) assembles or manufactures the final product; or
"(2) creates or otherwise provides a majority of the components used in the battery.
"(d) Waiver.—The Secretary of Defense may waive the limitation under subsection (a)."
Limitation on Sourcing Chemical Materials for Munitions From Certain Countries
Pub. L. 118–31, div. A, title II, §244, Dec. 22, 2023, 137 Stat. 209, provided that:
"(a) Limitation.—The Secretary of Defense may not procure a chemical material for munitions specified in subsection (b) from any country specified in subsection (c).
"(b) Chemical Materials Specified.—The chemical materials for munitions specified in this subsection are the chemicals listed under the heading 'Task 1: Domestic Production of Critical Chemicals' in section 3.0E of the document of the Department of Defense titled 'Statement of Objectives (SOO) for Critical Chemicals Production' (FOA: FA8650-19-S-5010, Appendix VI, Call: 012) and dated December 5, 2022.
"(c) Countries Specified.—The countries specified in this subsection are the following:
"(1) The People's Republic of China.
"(2) The Russian Federation.
"(3) The Islamic Republic of Iran.
"(4) The Democratic People's Republic of North Korea.
"(d) Effective Date.—The requirements of this section shall take effect on a date determined by the Secretary of Defense that is not later than September 30, 2028."
Prohibition on Required Disclosure by Department of Defense Contractors of Information Relating to Greenhouse Gas Emissions
Pub. L. 118–31, div. A, title III, §318, Dec. 22, 2023, 137 Stat. 218, provided that:
"(a) Prohibition on Disclosure Requirements.—
"(1) Nontraditional defense contractors.—The Secretary of Defense may not require that any nontraditional defense contractor, as a condition of being awarded a contract with the Secretary, disclose a greenhouse gas inventory or any other report on greenhouse gas emissions, unless the Secretary determines that requiring such disclosure is necessary to verify a voluntary disclosure of such inventory or other report by the nontraditional defense contractor.
"(2) Other than nontraditional defense contractors.—During the one-year period beginning on the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense may not require that any individual or entity other than a nontraditional defense contractor, as a condition of being awarded a contract with the Secretary, disclose a greenhouse gas inventory or any other report on greenhouse gas emissions, unless the Secretary determines that requiring such disclosure is necessary to verify a voluntary disclosure of such inventory or other report by the individual or entity.
"(b) Waiver.—The Secretary of Defense may issue a waiver on a contract-by-contract basis provided that the information provided is directly related to the performance of the contract. In issuing such a waiver, the Secretary of Defense shall ensure that any information that is required is clearly identifiable.
"(c) Definitions.—In this section:
"(1) The term 'greenhouse gas' means—
"(A) carbon dioxide;
"(B) methane;
"(C) nitrous oxide;
"(D) nitrogen trifluoride;
"(E) hydrofluorocarbons;
"(F) perfluorocarbons; or
"(G) sulfur hexafluoride.
"(2) The term 'greenhouse gas inventory' means, with respect to a person, a quantified list of the annual greenhouse gas emissions of the person.
"(3) The term 'nontraditional defense contractor' has the meaning given the term in section 3014 of title 10, United States Code."
Prohibition on Contracting With Persons That Have Fossil Fuel Operations With the Government of the Russian Federation or the Russian Energy Sector
Pub. L. 118–31, div. A, title VIII, §804, Dec. 22, 2023, 137 Stat. 313, provided that:
"(a) Prohibition.—
"(1) In general.—Except as provided under subsections (b), (c), and (d), the Secretary of Defense may not enter into a contract for the procurement of goods or services with any person that is or that has fossil fuel business operations with a person that is not less than 50 percent owned, individually or collectively, by—
"(A) an authority of the Government of the Russian Federation; or
"(B) a fossil fuel company that operates in the Russian Federation, except if the fossil fuel company transports oil or gas—
"(i) through the Russian Federation for sale outside of the Russian Federation; and
"(ii) that was extracted from a country other than the Russian Federation with respect to the energy sector of which the President has not imposed sanctions as of the date on which the contract is awarded.
"(2) Oil and gas origin.—For the purposes of applying the exception under paragraph (1)(B), oil and gas transported by a fossil fuel company shall be deemed to have been extracted from the location of extraction specified in the certificate of origin or other documentation confirming the origin of such oil or gas unless the person with respect to which such exception would apply knew or had reason to know that such location in such documentation was false or incorrect.
"(b) Exceptions.—
"(1) In general.—The prohibition under subsection (a) does not apply to a contract that the Secretary of Defense and the Secretary of State jointly determine—
"(A) is necessary—
"(i) for purposes of providing humanitarian assistance to the people of Russia; or
"(ii) for purposes of providing disaster relief and other urgent life-saving measures;
"(B) is vital to the military readiness, basing, or operations of the United States or the North Atlantic Treaty Organization;
"(C) is vital to the national security interests of the United States; or
"(D) was a business operation with a fossil fuel company in a country other than the Russian Federation that was entered into prior to the date of the enactment of this section [Dec. 22, 2023].
"(2) Notification requirement.—The Secretary of Defense shall notify the appropriate congressional committees of any contract entered into on the basis of an exception provided for under paragraph (1).
"(3) Office of foreign assets control licenses.—The prohibition in subsection (a) shall not apply to a person that has a valid license to operate in Russia issued by the Office of Foreign Assets Control of the Department of the Treasury or is otherwise authorized to operate in Russia by the Federal Government notwithstanding the imposition of sanctions.
"(4) American diplomatic mission in russia.—The prohibition in subsection (a) shall not apply to contracts related to the operation and maintenance of the United States Government's consular offices and diplomatic posts in Russia.
"(c) Applicability.—This section shall take effect on the date of the enactment of this Act [Dec. 22, 2023] and apply with respect to any contract entered into on or after such effective date.
"(d) Sunset.—This section shall terminate on December 31, 2029.
"(e) Definitions.—In this section:
"(1) Appropriate congressional committees.—The term 'appropriate congressional committees' means—
"(A) the Committee on Oversight and Accountability, the Committee on Armed Services, and the Committee on Foreign Affairs of the House of Representatives; and
"(B) the Committee on Homeland Security and Governmental Affairs, the Committee on Armed Services, and the Committee on Foreign Relations of the Senate.
"(2) Business operations.—
"(A) In general.—The term 'business operations' means engaging in commerce in any form, including acquiring, developing, maintaining, owning, selling, possessing, leasing, or operating equipment, facilities, personnel, products, services, personal property, real property, or any other apparatus of business or commerce.
"(B) Exceptions.—The term 'business operations' does not include—
"(i) any shipment subject to price caps as specified in the 'Statement of the G7 and Australia on a Price Cap for Seaborne Russian-Origin Crude Oil', issued on December 2, 2022, between member countries of that coalition, or the price caps as specified in the 'Statement of the G7 and Australia on price caps for seaborne Russian-origin petroleum products Berlin, Brussels, Canberra, London, Ottawa, Paris, Rome, Tokyo, Washington', issued on February 4, 2023, between such members, if such shipment complies with the applicable price caps;
"(ii) actions taken for the benefit of the country of Ukraine, as determined by the Secretary of Defense; or
"(iii) actions taken to support the suspension or termination of business operations for commercial activities during the period beginning on the date of the enactment of this Act and ending on the date described in subsection (d), including—
(I) any action to secure or divest from facilities, property, or equipment;
(II) the provision of products or services provided to reduce or eliminate operations in territory internationally recognized as the Russian Federation or to comply with sanctions relating to the Russian Federation; and
(III) activities that are incident to liquidating, dissolving, or winding down a subsidiary or legal entity in Russia.
"(3) Fossil fuel company.—The term 'fossil fuel company' means a person that—
"(A) carries out oil, gas, or coal exploration, development, or production activities;
"(B) processes or refines oil, gas, or coal; or
"(C) transports, or constructs facilities for the transportation of, Russian oil, gas, or coal.
"(4) Person.—The term 'person' means—
"(A) a natural person, corporation, company, business association, partnership, society, trust, or any other nongovernmental entity, organization, or group;
"(B) any governmental entity or instrumentality of a government, including a multilateral development institution (as defined in section 1701(c)(3) of the International Financial Institutions Act (22 U.S.C. 262r(c)(3))); and
"(C) any successor, subunit, parent entity, or subsidiary of, or any entity under common ownership or control with, any entity described in subparagraph (A) or (B)."
Prohibition of the Department of Defense Procurement Related to Entities Identified as Chinese Military Companies Operating in the United States
Pub. L. 118–31, div. A, title VIII, §805, Dec. 22, 2023, 137 Stat. 315, provided that:
"(a) Prohibition on Use or Procurement.—
"(1) In general.—Except as provided under subsection (d), the Secretary may not—
"(A) enter into, renew, or extend a contract for the procurement of goods, services, or technology with an entity described in paragraph (2); or
"(B) enter into, renew, or extend a contract for the procurement of goods or services that include goods or services produced or developed by an entity described in paragraph (2).
"(2) Entities described.—An entity described in this paragraph is—
"(A) an entity that is identified in the annual list published in the Federal Register by the Department of Defense of Chinese military companies operating in the United States pursuant to section 1260H of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283] (10 U.S.C. 113 note); or
"(B) any entity subject to the control of an entity described in subparagraph (A).
"(3) Limitation on applicability.—
"(A) In general.—Nothing in paragraph (1) shall prohibit the Secretary from entering into, renewing, or extending a contract for the procurement of goods, services, or technology to provide a service that connects to the facilities of a third party, including backhaul, roaming, or interconnection arrangements.
"(B) Existing contracts.—Nothing in this section shall permit the Secretary to apply the prohibitions in paragraph (1) to existing contracts for goods, services, or technology, including when such contracts are modified, extended, or renewed, entered into prior to the relevant date described in subsection (b).
"(C) Components.—Paragraph (1) shall not apply with respect to components (as defined in section 105 of title 41, United States Code).
"(4) Rulemaking.—
"(A) Entity prohibition.—Not later than one year after the date of the enactment of this Act [Dec. 22, 2023], the Secretary shall amend the Defense Federal Acquisition Regulation Supplement to implement the prohibitions in paragraph (1)(A) for the Department of Defense.
"(B) Goods and services prohibition.—Not later than 545 days after the date of the enactment of this Act, the Secretary shall amend the Defense Federal Acquisition Regulation Supplement to implement the prohibitions in paragraph (1)(B) for the Department of Defense, including—
"(i) best practices to avoid being subject to the prohibitions described in paragraph (1)(B); and
"(ii) technical support to assist affected businesses, institutions, and organizations as is reasonably necessary for those affected entities to comply with this section.
"(b) Effective Dates.—The prohibition under subsection (a)(1)(A) shall take effect on June 30, 2026, and the prohibition under subsection (a)(1)(B) shall take effect on June 30, 2027.
"(c) Waiver Authority.—
"(1) In general.—The Secretary may waive the requirements under subsection (a) with respect to an entity that requests such a waiver if the entity seeking the waiver—
"(A) provides to the Secretary a compelling justification for the additional time to implement the requirements under such subsection, as determined by the Secretary of Defense; and
"(B) provides to the Secretary a phase-out plan to eliminate goods, services, or technology produced or developed by an entity described in subsection (a)(2) from the systems of the entity.
"(2) Duration.—A waiver granted under paragraph (1) may remain in effect until the date on which the Secretary determines that commercially viable providers exist outside of the People's Republic of China that can and are willing to provide the Department of Defense with quality goods and services in the quantity demanded.
"(3) Delegation.—The Secretary may designate the authority under this section only to—
"(A) the service acquisition executive of the military department (as such terms are defined in section 101(a) of title 10, United States Code) concerned; or
"(B) the official responsible for all acquisition functions of such other element or organization of the Department of Defense concerned.
"(d) Exception.—The President shall not be required to apply or maintain the prohibition under subsection (a) for activities subject to the reporting requirements under title V of the National Security Act of 1947 (50 U.S.C. 3091 et seq.), or to any authorized intelligence activities of the United States.
"(e) Definitions.—In this section:
"(1) Control.—The term 'control' has the meaning given that term in part 800.208 of title 31, Code of Federal Regulations, or any successor regulations.
"(2) Secretary.—The term 'Secretary' means the Secretary of Defense."
Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region
Pub. L. 117–81, div. A, title VIII, §848, Dec. 27, 2021, 135 Stat. 1843, which related to procurement of products mined, produced, or manufactured wholly or in part by forced labor from Xinjiang Uyghur Autonomous Region of the People's Republic of China, was repealed by Pub. L. 117–263, div. A, title VIII, §855(a), Dec. 23, 2022, 136 Stat. 2723. See section 4661 of this title.
Employment Transparency Regarding Individuals Who Perform Work in the People's Republic of China
Pub. L. 117–81, div. A, title VIII, §855, Dec. 27, 2021, 135 Stat. 1850, provided that:
"(a) Disclosure Requirements.—
"(1) Initial disclosures.—The Secretary of Defense shall require each covered entity to disclose to the Secretary of Defense if the entity employs one or more individuals who will perform work in the People's Republic of China on a covered contract when the entity submits a bid or proposal for such covered contract, except that such disclosure shall not be required to the extent that the Secretary determines that such disclosure would not be in the interest of national security.
"(2) Recurring disclosures.—For each of fiscal years 2023 and 2024, the Secretary of Defense shall require each covered entity that is a party to one or more covered contracts in the fiscal year to disclose to the Secretary if the entity employs one or more individuals who perform work in the People's Republic of China on any such contract.
"(3) Matters to be included.—If a covered entity required to make a disclosure under paragraph (1) or (2) employs any individual who will perform work in the People's Republic of China on a covered contract, such disclosure shall include—
"(A) the total number of such individuals who will perform work in the People's Republic of China on the covered contracts funded by the Department of Defense; and
"(B) a description of the physical presence in the People's Republic of China where work on the covered contract will be performed.
"(b) Funding for Covered Entities.—The Secretary of Defense may not award a covered contract to, or renew a covered contract with, a covered entity unless such covered entity has submitted each disclosure such covered entity is required to submit under subsection (a).
"(c) Semi-annual Briefing.—Beginning on January 1, 2023, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] semi-annual briefings that summarize the disclosures received by the Department over the previous 180 days pursuant to this section, and such briefings may be classified.
"(d) Definitions.—In this section:
"(1) Covered contract.—The term 'covered contract' means any Department of Defense contract or subcontract with a value in excess of $5,000,000, excluding contracts for commercial products or services.
"(2) Covered entity.—The term 'covered entity' means any corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity, including any subsidiary thereof, performing work on a covered contract in the People's Republic of China, including by leasing or owning real property used in the performance of the covered contract in the People's Republic of China.
"(e) Effective Date.—This section shall take effect on July 1, 2022."
Prohibition on Procurements From Chinese Military Companies
Pub. L. 109–163, div. A, title XII, §1211, Jan. 6, 2006, 119 Stat. 3461, as amended by Pub. L. 112–81, div. A, title XII, §1243(a), (b), Dec. 31, 2011, 125 Stat. 1645; Pub. L. 114–328, div. A, title XII, §1296, Dec. 23, 2016, 130 Stat. 2562; Pub. L. 117–263, div. A, title VIII, §857(b), Dec. 23, 2022, 136 Stat. 2729, provided that:
"(a) Prohibition.—The Secretary of Defense may not procure goods or services described in subsection (b), through a contract or any subcontract (at any tier) under a contract, from any Communist Chinese military company, any Chinese military company, any Non-SDN Chinese military-industrial complex company, or any other covered company.
"(b) Goods and Services Covered.—
"(1) In general.—For purposes of subsection (a), and except as provided in paragraph (2), the goods and services described in this subsection are goods and services—
"(A) on the munitions list of the International Traffic in Arms Regulations; or
"(B) on the Commerce Control List that—
"(i) are classified in the 600 series; or
"(ii) contain strategic and critical materials, rare earth elements, or energetic materials used to manufacture missiles or munitions.
"(2) Exceptions.—Goods and services described in this subsection do not include goods or services procured—
"(A) in connection with a visit by a vessel or an aircraft of the United States Armed Forces to the People's Republic of China;
"(B) for testing purposes; or
"(C) for purposes of gathering intelligence.
"(c) Waiver Authorized.—The Secretary of Defense may waive the prohibition in subsection (a) if the Secretary determines that such a waiver is necessary for national security purposes and the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report described in subsection (d) not less than 15 days before issuing the waiver under this subsection.
"(d) Report.—The report referred to in subsection (c) is a report that identifies the specific reasons for the waiver issued under subsection (c) and includes recommendations as to what actions may be taken to develop alternative sourcing capabilities in the future.
"(e) Definitions.—In this section:
"(1) The term 'Chinese military company' has the meaning given that term by section 1260H(d)(1) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283; 10 U.S.C. 113 note).
"(2) The term 'Commerce Control List' means the list maintained by the Bureau of Industry and Security and set forth in Supplement No. 1 to part 774 of the Export Administration Regulations.
"(3) The term 'Communist Chinese military company' has the meaning provided that term by section 1237(b)(4) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 [Pub. L. 105–261] (50 U.S.C. 1701 note).
"(4) The term 'Export Administration Regulations' has the meaning given that term in section 1742 of the Export Control Reform Act of 2018 (50 U.S.C. 4801).
"(5) The term 'munitions list of the International Traffic in Arms Regulations' means the United States Munitions List contained in part 121 of subchapter M of title 22 of the Code of Federal Regulations.
"(6) The term 'Non-SDN Chinese military-industrial complex company' means any entity on the Non-SDN Chinese Military-Industrial Complex Companies List—
"(A) established pursuant to Executive Order 13959 (50 U.S.C. 1701 note; relating to addressing the threat from securities investments that finance Communist Chinese military companies), as amended before, on, or after the date of the enactment of the [James M. Inhofe] National Defense Authorization Act for Fiscal Year 2023 [Dec. 23, 2022]; and
"(B) maintained by the Office of Foreign Assets Control of the Department of the Treasury.
"(7) The term 'other covered company' means a company that—
"(A) is owned or controlled by the government of the People's Republic of China; and
"(B) is certified by the Secretary of Defense to the congressional defense committees to be a company that must be covered by this section for national security reasons.
"(8) The term 'strategic and critical materials' means materials designated as strategic and critical under section 3(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98b(a)).
"(f) Effective Date.—With respect to goods and services described in clause (ii) of subparagraph (b)(1)(B), the prohibition shall take effect 180 days after the date on which the Secretary of Defense certifies to the congressional defense committees that a sufficient number of commercially viable providers exist outside of the People's Republic of China that collectively can provide the Department of Defense with satisfactory quality and sufficient quantity of such goods or services as and when needed at United States market prices."
[Pub. L. 112–81, div. A, title XII, §1243(c), Dec. 31, 2011, 125 Stat. 1646, provided that: "The amendments made by this section [amending section 1211 of Pub. L. 109–163, set out above] take effect on the date of the enactment of this Act [Dec. 31, 2011] and apply with respect to contracts and subcontracts of the Department of Defense entered into on or after the date of the enactment of this Act."]
§4651. Expenditure of appropriations: limitation
(a) Money appropriated to the Department of Defense may not be spent under a contract other than a contract for personal services unless that contract provides that—
(1) the United States may, by written notice to the contractor, terminate the right of the contractor to proceed under the contract if the Secretary concerned or his designee finds, after notice and hearing, that the contractor, or his agent or other representative, offered or gave any gratuity, such as entertainment or a gift, to an officer, official, or employee of the United States to obtain a contract or favorable treatment in the awarding, amending, or making of determinations concerning the performance, of a contract; and
(2) if a contract is terminated under clause (1), the United States has the same remedies against the contractor that it would have had if the contractor had breached the contract and, in addition to other damages, is entitled to exemplary damages in an amount at least three, but not more than 10, as determined by the Secretary or his designee, times the cost incurred by the contractor in giving gratuities to the officer, official, or employee concerned.
The existence of facts upon which the Secretary makes findings under clause (1) may be reviewed by any competent court.
(b) This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520, §2207; amended Pub. L. 104–106, div. A, title VIII, §801, Feb. 10, 1996, 110 Stat. 389; Pub. L. 111–350, §5(b)(5), Jan. 4, 2011, 124 Stat. 3842; renumbered §4651, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
The following substitutions are made: "spent" for "expended"; "United States" for "Government"; "if a contract is terminated under clause (1)" for "that in the event any such contract is so terminated"; and "has . . . that it would have had if" for "shall be entitled . . . to pursue . . . as it could pursue in the event of". The word "official" is inserted for clarity. The words "entered into after June 30, 1954" are omitted as executed.
Editorial Notes
Prior Provisions
A prior section 4651, Aug. 10, 1956, ch. 1041, 70A Stat. 260; Pub. L. 99–145, title XIII, §1301(b(3)(C), Nov. 8, 1985, 99 Stat. 736, related to issuance of arms, tentage, and equipment necessary for proper military training to institutions not maintaining units of the Reserve Officers' Training Corps, prior to repeal by Pub. L. 112–239, div. A, title V, §552(b), Jan. 2, 2013, 126 Stat. 1741.
Amendments
2021—Pub. L. 116–283 renumbered section 2207 of this title as this section.
2011—Subsec. (b). Pub. L. 111–350 substituted "section 134 of title 41" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))".
1996—Pub. L. 104–106 designated existing provisions as subsec. (a) and added subsec. (b).
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.
§4652. Prohibition on use of funds for documenting economic or employment impact of certain acquisition programs
No funds appropriated by the Congress may be obligated or expended to assist any contractor of the Department of Defense in preparing any material, report, lists, or analysis with respect to the actual or projected economic or employment impact in a particular State or congressional district of an acquisition program for which all research, development, testing, and evaluation has not been completed.
(Added Pub. L. 103–355, title VII, §7202(a)(1), Oct. 13, 1994, 108 Stat. 3379, §2247; renumbered §2249, Pub. L. 104–106, div. D, title XLIII, §4321(b)(2)(A), Feb. 10, 1996, 110 Stat. 672; renumbered §4652, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
Prior Provisions
A prior section 4652 was renumbered section 7652 of this title.
Amendments
2021—Pub. L. 116–283 renumbered section 2249 of this title as this section.
1996—Pub. L. 104–106 renumbered section 2247 of this title as section 2249.
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
For effective date and applicability of section, see section 10001 of Pub. L. 103–355 set out as an Effective Date of 1994 Amendment note under section 8752 of this title.
§4653. Prohibition on use of funds to relieve economic dislocations
(a) In order to help avoid the uneconomic use of Department of Defense funds in the procurement of goods and services, the Congress finds that it is necessary to prohibit the use of such funds for certain purposes.
(b) No funds appropriated to or for the use of the Department of Defense may be used to pay, in connection with any contract awarded by the Department of Defense, a price differential for the purpose of relieving economic dislocations.
(Added Pub. L. 97–86, title IX, §913(a)(1), Dec. 1, 1981, 95 Stat. 1123, §2392; renumbered §4653, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
Prior Provisions
A prior section 4653 was renumbered section 7653 of this title.
Amendments
2021—Pub. L. 116–283 renumbered section 2392 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.
§4654. Prohibition against doing business with certain offerors or contractors
(a)(1) Except as provided in paragraph (2), the Secretary of a military department may not solicit an offer from, award a contract to, extend an existing contract with, or, when approval by the Secretary of the award of a subcontract is required, approve the award of a subcontract to, an offeror or contractor which to the Secretary's knowledge has been debarred or suspended by another Federal agency unless—
(A) in the case of debarment, the debarment of the offeror or contractor by all other agencies has been terminated or the period of time specified for such debarment has expired; and
(B) in the case of a suspension, the period of time specified by all other agencies for the suspension of the offeror or contractor has expired.
(2) Paragraph (1) does not apply in any case in which the Secretary concerned determines that there is a compelling reason to solicit an offer from, award a contract to, extend a contract with, or approve a subcontract with such offeror or contractor.
(b) Whenever the Secretary concerned makes a determination described in subsection (a)(2), he shall, at the time of the determination, transmit a notice to the Administrator of General Services describing the determination. The Administrator of General Services shall maintain each such notice on a publicly accessible website to the maximum extent practicable.
(c) In this section:
(1) The term "debar" means to exclude, pursuant to established administrative procedures, from Government contracting and subcontracting for a specified period of time commensurate with the seriousness of the failure or offense or the inadequacy of performance.
(2) The term "suspend" means to disqualify, pursuant to established administrative procedures, from Government contracting and subcontracting for a temporary period of time because a concern or individual is suspected of engaging in criminal, fraudulent, or seriously improper conduct.
(d) The Secretary of Defense shall prescribe in regulations a requirement that each contractor under contract with the Department of Defense shall require each contractor to whom it awards a contract (in this section referred to as a subcontractor) to disclose to the contractor whether the subcontractor is or is not, as of the time of the award of the subcontract, debarred or suspended by the Federal Government from Government contracting or subcontracting. The requirement shall apply to any subcontractor whose subcontract is in an amount greater than the simplified acquisition threshold (as defined in section 134 of title 41). The requirement shall not apply in the case of a subcontract for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41).
(Added Pub. L. 97–86, title IX, §914(a), Dec. 1, 1981, 95 Stat. 1124, §2393; amended Pub. L. 100–180, div. A, title XII, §1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 101–510, div. A, title VIII, §813, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–190, div. A, title X, §1061(a)(11), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–355, title IV, §4102(e), title VIII, §8105(c), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 111–350, §5(b)(24), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 113–66, div. A, title VIII, §813, Dec. 26, 2013, 127 Stat. 808; Pub. L. 115–232, div. A, title VIII, §836(e)(3), Aug. 13, 2018, 132 Stat. 1869; renumbered §4654, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
Prior Provisions
A prior section 4654 was renumbered section 7654 of this title.
Amendments
2021—Pub. L. 116–283 renumbered section 2393 of this title as this section.
2018—Subsec. (d). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41)" for "commercial items (as defined in section 103 of title 41)".
2013—Subsec. (b). Pub. L. 113–66 substituted "on a publicly accessible website to the maximum extent practicable" for "in a file available for public inspection".
2011—Subsec. (d). Pub. L. 111–350 substituted "section 134 of title 41)" for "section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))" and "section 103 of title 41)" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))".
1994—Subsec. (d). Pub. L. 103–355 substituted "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)))." for "above the small purchase amount established in section 2304(g) of this title." in second sentence and inserted at end "The requirement shall not apply in the case of a subcontract for the acquisition of commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))."
1991—Subsec. (d). Pub. L. 102–190 substituted "Federal Government" for "Federal government".
1990—Subsec. (d). Pub. L. 101–510 added subsec. (d).
1987—Subsec. (c). Pub. L. 100–180 inserted "The term" after each par. designation and revised first word in quotes in each par. to make initial letter of such word lowercase.
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 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 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
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.
§4655. 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.
(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 134 of title 41).
(d)(1) An agreement between the contractor in a contract for the acquisition of commercial products or commercial services and a subcontractor under such contract that restricts sales by such subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the United States in violation of the provision included in such contract pursuant to subsection (a) if the agreement does not result in the United States being treated differently with regard to the restriction than any other prospective purchaser of such commercial products or commercial services from that subcontractor.
(2) In paragraph (1), the terms "commercial product" and "commercial service" have the meanings given those terms in sections 103 and 103a, respectively, of title 41.
(Added Pub. L. 98–525, title XII, §1234(a), Oct. 19, 1984, 98 Stat. 2601, §2402; amended Pub. L. 103–355, title IV, §4102(f), title VIII, §8105(g), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 111–350, §5(b)(25), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(e)(4), Aug. 13, 2018, 132 Stat. 1869; renumbered §4655, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
Prior Provisions
A prior section 4655 was renumbered section 7655 of this title.
Amendments
2021—Pub. L. 116–283 renumbered section 2402 of this title as this section.
2018—Subsec. (d)(1). Pub. L. 115–232, §836(e)(4)(A), substituted "commercial products or commercial services" for "commercial items" in two places.
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."
2011—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)))".
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))".
1994—Subsecs. (c), (d). Pub. L. 103–355 added subsecs. (c) and (d).
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 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 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
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.
Effective Date
Pub. L. 98–525, title XII, §1234(c), Oct. 19, 1984, 98 Stat. 2604, provided that: "Section 2402 of title 10, United States Code [now 10 U.S.C. 4655] (as added by subsection (a)), shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984]."
§4656. Prohibition on persons convicted of defense-contract related felonies and related criminal penalty on defense contractors
(a) Prohibition.—(1) An individual who is convicted of fraud or any other felony arising out of a contract with the Department of Defense shall be prohibited from each of the following:
(A) Working in a management or supervisory capacity on any defense contract or any first tier subcontract of a defense contract.
(B) Serving on the board of directors of any defense contractor or any subcontractor awarded a contract directly by a defense contractor.
(C) Serving as a consultant to any defense contractor or any subcontractor awarded a contract directly by a defense contractor.
(D) Being involved in any other way, as determined under regulations prescribed by the Secretary of Defense, with a defense contract or first tier subcontract of a defense contract.
(2) Except as provided in paragraph (3), the prohibition in paragraph (1) shall apply for a period, as determined by the Secretary of Defense, of not less than five years after the date of the conviction.
(3) The prohibition in paragraph (1) may apply with respect to an individual for a period of less than five years if the Secretary determines that the five-year period should be waived in the interests of national security.
(4) The prohibition in paragraph (1) does not apply with respect to the following:
(A) A contract referred to in subparagraph (A), (B), (C), or (D) of such paragraph that is not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(B) A contract referred to in such subparagraph that is for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41).
(C) A subcontract referred to in such subparagraph that is under a contract described in subparagraph (A) or (B).
(b) Criminal Penalty.—A defense contractor or subcontractor shall be subject to a criminal penalty of not more than $500,000 if such contractor or subcontractor is convicted of knowingly—
(1) employing a person under a prohibition under subsection (a); or
(2) allowing such a person to serve on the board of directors of such contractor or subcontractor.
(c) Single Point of Contact for Information.—(1) The Attorney General shall ensure that a single point of contact is established to enable a defense contractor or subcontractor to promptly obtain information regarding whether a person that the contractor or subcontractor proposes to use for an activity covered by paragraph (1) of subsection (a) is under a prohibition under that subsection.
(2) The procedure for obtaining such information shall be specified in regulations prescribed by the Secretary of Defense under subsection (a).
(Added Pub. L. 99–500, §101(c) [title X, §941(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-161, and Pub. L. 99–591, §101(c) [title X, §941(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-161, §2408; Pub. L. 99–661, div. A, title IX, formerly title IV, §941(a)(1), Nov. 14, 1986, 100 Stat. 3941, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–456, div. A, title VIII, §831(a), Sept. 29, 1988, 102 Stat. 2023; Pub. L. 101–510, div. A, title VIII, §812, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–484, div. A, title VIII, §815(a), Oct. 23, 1992, 106 Stat. 2454; Pub. L. 103–355, title IV, §4102(g), title VIII, §8105(h), Oct. 13, 1994, 108 Stat. 3340, 3393; Pub. L. 104–106, div. A, title X, §1062(e), Feb. 10, 1996, 110 Stat. 444; Pub. L. 111–350, §5(b)(26), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(e)(5), Aug. 13, 2018, 132 Stat. 1870; renumbered §4656, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
Codification
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
Prior Provisions
A prior section 4656 was renumbered section 7656 of this title.
Amendments
2021—Pub. L. 116–283 renumbered section 2408 of this title as this section.
2018—Subsec. (a)(4)(B). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41)" for "commercial items (as defined in section 103 of title 41)".
2011—Subsec. (a)(4)(A). Pub. L. 111–350, §5(b)(26)(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)))".
Subsec. (a)(4)(B). Pub. L. 111–350, §5(b)(26)(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)))".
1996—Subsec. (a)(3). Pub. L. 104–106 struck out at end "If the five-year period is waived, the Secretary shall submit to Congress a report stating the reasons for the waiver."
1994—Subsec. (a)(4). Pub. L. 103–355, §4102(g), added introductory provisions and subpar. (A).
Subsec. (a)(4)(B). Pub. L. 103–355, §8105(h)(1), added subpar. (B).
Subsec. (a)(4)(C). Pub. L. 103–355, §8105(h)(2), inserted "or (B)" before period at end.
Pub. L. 103–355, §4102(g), added subpar. (C).
1992—Subsec. (c). Pub. L. 102–484 added subsec. (c).
1990—Subsec. (a)(1)(A). Pub. L. 101–510, §812(a)(1), inserted before period at end "or any first tier subcontract of a defense contract".
Subsec. (a)(1)(B). Pub. L. 101–510, §812(a)(2), inserted before period at end "or any subcontractor awarded a contract directly by a defense contractor".
Subsec. (a)(1)(C). Pub. L. 101–510, §812(a)(3), inserted before period at end "or any subcontractor awarded a contract directly by a defense contractor".
Subsec. (a)(1)(D). Pub. L. 101–510, §812(a)(4), inserted before period at end "or first tier subcontract of a defense contract".
Subsec. (b). Pub. L. 101–510, §812(b), inserted "or subcontractor" after "contractor" wherever appearing.
1988—Subsec. (a). Pub. L. 100–456 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "A person who is convicted of fraud or any other felony arising out of a contract with the Department of Defense shall be prohibited from working in a management or supervisory capacity on any defense contract, or serving on the board of directors of any defense contractor, for a period, as determined by the Secretary of Defense, of not less than one year from the date of the conviction."
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 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 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
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.
Effective Date of 1988 Amendment
Pub. L. 100–456, div. A, title VIII, §831(b), Sept. 29, 1988, 102 Stat. 2023, provided that: "Section 2408(a) of title 10, United States Code [now 10 U.S.C. 4656(a)], as amended by subsection (a), shall apply with respect to individuals convicted after the date of the enactment of this Act [Sept. 29, 1988]."
Effective Date
Pub. L. 99–500, §101(c) [title X, §941(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-162, Pub. L. 99–591, §101(c) [title X, §941(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-162, and Pub. L. 99–661, div. A, title IX, formerly title IV, §941(c), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2408 of title 10, United States Code [now 10 U.S.C. 4656] (as added by subsection (a)(1)), shall apply with respect to employment or service on a board of directors after the date of the enactment of this Act [Oct. 18, 1986]."
§4657. Prohibition on criminal history inquiries by contractors prior to conditional offer
(a) Limitation on Criminal History Inquiries.—
(1) In general.—Except as provided in paragraphs (2) and (3), the head of an agency—
(A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and
(B) shall require as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before such contractor extends a conditional offer to the applicant.
(2) Otherwise required by law.—The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.
(3) Exception for certain positions.—
(A) In general.—The prohibition under paragraph (1) does not apply with respect to—
(i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or
(ii) a position that the Secretary of Defense identifies under the regulations issued under subparagraph (B).
(B) Regulations.—
(i) Issuance.—Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Secretary of Defense, in consultation with the Administrator of General Services, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions.
(ii) Compliance with civil rights laws.—The regulations issued under clause (i) shall—
(I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and
(II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws.
(b) Complaint Procedures.—The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a Department of Defense contractor may submit a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B).
(c) Action for Violations of Prohibition on Criminal History Inquiries.—
(1) First violation.—If the Secretary of Defense determines that a contractor has violated subsection (a)(1)(B), the Secretary shall—
(A) notify the contractor;
(B) provide 30 days after such notification for the contractor to appeal the determination; and
(C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.
(2) Subsequent violations.—If the Secretary of Defense determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), the Secretary shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor's history of violations, including—
(A) providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section;
(B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and
(C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section.
(d) Definitions.—In this section:
(1) Conditional offer.—The term "conditional offer" means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry.
(2) Criminal history record information.—The term "criminal history record information" has the meaning given that term in section 9201 of title 5.
(Added Pub. L. 116–92, div. A, title XI, §1123(b)(1), Dec. 20, 2019, 133 Stat. 1612, §2339; renumbered §4657, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
References in Text
The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019.
The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
Prior Provisions
A prior section 4657 was renumbered section 7657 of this title.
Amendments
2021—Pub. L. 116–283 renumbered section 2339 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. 116–92, div. A, title XI, §1123(b)(2), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, §1862(c)(3)(A), Jan. 1, 2021, 134 Stat. 4278, provided that: "Section 4657(a) of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle [2 years after Dec. 20, 2019, see Effective Date note set out under section 9202 of Title 5, Government Organization and Employees]."
Revisions to Federal Acquisition Regulation
Pub. L. 116–92, div. A, title XI, §1123(c), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, §1862(c)(3)(B), Jan. 1, 2021, 134 Stat. 4278, provided that:
"(1) In general.—Not later than 18 months after the date of enactment of this subtitle [Dec. 20, 2019], the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement section 4714 of title 41, United States Code, and section 4657 of title 10, United States Code, as added by this section.
"(2) Consistency with office of personnel management regulations.—The Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation under paragraph (1) to be consistent with the regulations issued by the Director of the Office of Personnel Management under section 1122(b)(1) [5 U.S.C. 9201 note] to the maximum extent practicable. The Council shall include together with such revision an explanation of any substantive modification of the Office of Personnel Management regulations, including an explanation of how such modification will more effectively implement the rights and protections under this section."
§4658. Debarment of persons convicted of fraudulent use of "Made in America" labels
(a) If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a "Made in America" inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in America, the Secretary shall determine, not later than 90 days after determining that the person has been so convicted, whether the person should be debarred from contracting with the Department of Defense.
(b) In this section, the term "debar" has the meaning given that term by section 4654(c) of this title.
(Added Pub. L. 102–484, div. A, title VIII, §834(a)(1), Oct. 23, 1992, 106 Stat. 2461, §2410f; amended Pub. L. 104–106, div. A, title X, §1062(f), title XV, §1503(a)(22), Feb. 10, 1996, 110 Stat. 444, 512; Pub. L. 107–107, div. A, title X, §1048(a)(20), Dec. 28, 2001, 115 Stat. 1223; renumbered §4658 and amended Pub. L. 116–283, div. A, title XVIII, §1862(b), (c)(2), Jan. 1, 2021, 134 Stat. 4277, 4278; Pub. L. 117–81, div. A, title XVII, §1701(b)(20), Dec. 27, 2021, 135 Stat. 2135.)
Editorial Notes
Amendments
2021—Pub. L. 116–283, §1862(b), renumbered section 2410f of this title as this section.
Subsec. (b). Pub. L. 116–283, §1862(c)(2), as amended by Pub. L. 117–81, §1701(b)(20), substituted "section 4654(c)" for "section 2393(c)".
2001—Subsec. (a). Pub. L. 107–107 inserted ", or another inscription with the same meaning," after "inscription".
1996—Subsec. (a). Pub. L. 104–106, §1062(f), struck out at end "If the Secretary determines that the person should not be debarred, the Secretary shall submit to Congress a report on such determination not later than 30 days after the determination is made."
Subsec. (b). Pub. L. 104–106, §1503(a)(22), substituted "In" for "For purposes of".
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.
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. 102–484, div. A, title VIII, §834(b), Oct. 23, 1992, 106 Stat. 2461, provided that: "Section 2410f of title 10, United States Code [now 10 U.S.C. 4658], as added by subsection (a), shall take effect 90 days after the date of the enactment of this Act [Oct. 23, 1992]."
Prohibition of Contracts
Pub. L. 106–398, §1 [[div. A], title VIII, §825(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-220, provided that: "If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a 'Made in America' inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in the United States, the Secretary shall determine, in accordance with section 2410f of title 10, United States Code [now 10 U.S.C. 4658], whether the person should be debarred from contracting with the Department of Defense."
Similar provisions were contained in the following prior authorization acts:
Pub. L. 106–65, div. A, title VIII, §816(b), Oct. 5, 1999, 113 Stat. 712.
Pub. L. 103–160, div. A, title VIII, §849(b), Nov. 30, 1993, 107 Stat. 1725.
§4659. Prohibition on contracting with entities that comply with the secondary Arab boycott of Israel
(a) Policy.—Under section 3(5)(A) 1 of the Export Administration Act of 1979 (50 U.S.C. 4602(5)(A)), it is the policy of the United States to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States or against any other United States person.
(b) Prohibition.—(1) Consistent with the policy referred to in subsection (a), the Department of Defense may not award a contract for an amount in excess of the simplified acquisition threshold (as defined in section 134 of title 41) to a foreign entity unless that entity certifies to the Secretary of Defense that it does not comply with the secondary Arab boycott of Israel.
(2) In paragraph (1), the term "foreign entity" means a foreign person, a foreign company, or any other foreign entity.
(c) Waiver Authority.—The Secretary of Defense may waive the prohibition in subsection (b) in specific instances when the Secretary determines that the waiver is necessary in the national security interests of the United States.
(d) Exceptions.—Subsection (b) does not apply—
(1) to contracts for consumable supplies, provisions, or services that are intended to be used for the support of United States forces or of allied forces in a foreign country; or
(2) to contracts pertaining to the use of any equipment, technology, data, or services for intelligence or classified purposes by the United States Government in the interests of national security or to the acquisition or lease of any such equipment, technology, data, or services by the United States Government in the interests of national security.
(Added Pub. L. 102–484, div. A, title XIII, §1332(a), Oct. 23, 1992, 106 Stat. 2555, §2410i; amended Pub. L. 111–350, §§4, 5(b)(31), Jan. 4, 2011, 124 Stat. 3841, 3845; Pub. L. 114–328, div. A, title X, §1081(b)(3)(D), Dec. 23, 2016, 130 Stat. 2419; Pub. L. 115–91, div. A, title X, §1051(a)(16), Dec. 12, 2017, 131 Stat. 1561; renumbered §4659, Pub. L. 116–283, div. A, title XVIII, §1862(b), Jan. 1, 2021, 134 Stat. 4277.)
Editorial Notes
References in Text
Section 3(5)(A) of the Export Administration Act of 1979 (50 U.S.C. 4602(5)(A)), referred to in subsec. (a), was repealed by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232.
Amendments
2021—Pub. L. 116–283 renumbered section 2410i of this title as this section.
2017—Subsec. (c). Pub. L. 115–91 struck out at end "Within 15 days after the end of each fiscal year, the Secretary shall submit to Congress a report identifying each contract for which a waiver was granted under this subsection during that fiscal year."
2016—Subsec. (a). Pub. L. 114–328 substituted "(50 U.S.C. 4602(5)(A))" for "(50 U.S.C. App. 2402(5)(A))".
2011—Subsec. (b)(1). Pub. L. 111–350 substituted "simplified acquisition threshold (as defined in section 134 of title 41)" for "small purchase threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))".
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.
§4660. Prohibition on collection of political information
(a) Prohibition on Requiring Submission of Political Information.—The head of an agency may not require a contractor to submit political information related to the contractor or a subcontractor at any tier, or any partner, officer, director, or employee of the contractor or subcontractor—
(1) as part of a solicitation, request for bid, request for proposal, or any other form of communication designed to solicit offers in connection with the award of a contract for procurement of property or services; or
(2) during the course of contract performance as part of the process associated with modifying a contract or exercising a contract option.
(b) Scope.—The prohibition under this section applies to the procurement of commercial products and commercial services, the procurement of commercial-off-the-shelf-items, and the non-commercial procurement of supplies, property, services, and manufactured items, irrespective of contract vehicle, including contracts, purchase orders, task or deliver orders under indefinite delivery/indefinite quantity contracts, blanket purchase agreements, and basic ordering agreements.
(c) Rule of Construction.—Nothing in this section shall be construed as—
(1) waiving, superseding, restricting, or limiting the application of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.) or preventing Federal regulatory or law enforcement agencies from collecting or receiving information authorized by law; or
(2) precluding the Defense Contract Audit Agency from accessing and reviewing certain information, including political information, for the purpose of identifying unallowable costs and administering cost principles established pursuant to subchapter I of chapter 273 of this title.
(d) Definitions.—In this section:
(1) Contractor.—The term "contractor" includes contractors, bidders, and offerors, and individuals and legal entities who would reasonably be expected to submit offers or bids for Federal Government contracts.
(2) Political information.—The term "political information" means information relating to political spending, including any payment consisting of a contribution, expenditure, independent expenditure, or disbursement for an electioneering communication that is made by the contractor, any of its partners, officers, directors or employees, or any of its affiliates or subsidiaries to a candidate or on behalf of a candidate for election for Federal office, to a political committee, to a political party, to a third party entity with the intention or reasonable expectation that it would use the payment to make independent expenditures or electioneering communications, or that is otherwise made with respect to any election for Federal office, party affiliation, and voting history.
(3) Other terms.—Each of the terms "contribution", "expenditure", "independent expenditure", "candidate", "election", "electioneering communication", and "Federal office" has the meaning given that term in the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.).
(Added Pub. L. 112–81, div. A, title VIII, §823(a), Dec. 31, 2011, 125 Stat. 1502, §2335; amended Pub. L. 113–291, div. A, title X, §1071(f)(17), Dec. 19, 2014, 128 Stat. 3511; Pub. L. 115–91, div. A, title X, §1081(a)(32), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 115–232, div. A, title VIII, §836(c)(10), Aug. 13, 2018, 132 Stat. 1866; renumbered §4660 and amended Pub. L. 116–283, div. A, title XVIII, §§1862(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4277, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(14), Dec. 27, 2021, 135 Stat. 2137.)
Editorial Notes
References in Text
The Federal Election Campaign Act of 1971, referred to in subsecs. (c)(1) and (d)(3), is Pub. L. 92–225, Feb. 7, 1972, 86 Stat. 3, which is classified principally to chapter 301 (§30101 et seq.) of Title 52, Voting and Elections. For complete classification of this Act to the Code, see Tables.
Prior Provisions
A prior section 4681, act Aug. 10, 1956, ch. 1041, 70A Stat. 262; Pub. L. 96–513, title V, §512(19), Dec. 12, 1980, 94 Stat. 2930; Pub. L. 107–217, §3(b)(24), Aug. 21, 2002, 116 Stat. 1297, related to sale to States and certain foreign governments of surplus war material, prior to repeal by Pub. L. 114–328, div. A, title XII, §1253(a)(1)(D), Dec. 23, 2016, 130 Stat. 2532.
Prior sections 4682 to 4690 were renumbered sections 7682 to 7690 of this title, respectively.
Amendments
2021—Pub. L. 116–283, §1862(b), renumbered section 2335 of this title as this section.
Subsec. (c)(2). Pub. L. 117–81 substituted "subchapter I of chapter 273" for "section 2324".
Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2324", which was redesignated as multiple sections.
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products and commercial services" for "commercial items".
2017—Subsecs. (c)(1), (d)(3). Pub. L. 115–91 substituted "(52 U.S.C. 30101 et seq.)" for "(2 U.S.C. 431 et seq.)".
2014—Subsec. (d)(2). Pub. L. 113–291, §1071(f)(17)(A), redesignated last sentence as par. (3).
Subsec. (d)(3). Pub. L. 113–291, §1071(f)(17)(B)(ii), (iii), substituted "that term" for "the term" and "Federal Election Campaign" for "Federal Campaign".
Pub. L. 113–291, §1071(f)(17)(B)(i), which directed amendment of par. (3) by inserting "Other terms.—" before "each of", was executed by making the insertion before "Each of" to reflect the probable intent of Congress.
Pub. L. 113–291, §1071(f)(17)(A), redesignated last sentence of par. (2) as (3).
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.
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 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 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§4661. Prohibition on certain procurements from the Xinjiang Uyghur Autonomous Region
(a) Prohibition on the Availability of Funds for Certain Procurements From XUAR.—None of the funds authorized to be appropriated by a national defense authorization Act or any other Act, or otherwise made available for any fiscal year for the Department of Defense, may be obligated or expended to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR as part of a "poverty alleviation" or "pairing assistance" program.
(b) Definitions.—In this section, the terms "forced labor" and "XUAR" have the meanings given, respectively, in section 2496 of this title.
(Added Pub. L. 117–263, div. A, title VIII, §855(b), Dec. 23, 2022, 136 Stat. 2723.)
Statutory Notes and Related Subsidiaries
Policy Required
Pub. L. 117–263, div. A, title VIII, §855(d), Dec. 23, 2022, 136 Stat. 2723, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall issue a policy to require that an offeror or awardee of a Department of Defense contract shall make a good faith effort to determine that forced labor from XUAR, as described in section 4661 of title 10, United States Code (as amended by subsection (b)), will not be used in the performance of such contract."
§4662. Prohibition on the transfer of certain data on employees of the Department of Defense to third parties
(a) In General.—Each contract entered into by the Department of Defense on or after the date of the enactment of this section shall include a provision prohibiting the contractor and each subcontractor under such contract from selling, licensing, or otherwise transferring covered individually identifiable Department employee data to any individual or entity other than the Federal Government, except to the extent required to perform such contract or a subcontract under such contract and that would be permissible pursuant to statute or guidance from the Director of the Office of Management and Budget.
(b) Waiver.—The Secretary of Defense may waive the requirements of subsection (a) with respect to a sale, licensing, or other transfer of covered individually identifiable Department employee data if the Secretary determines that such waiver is appropriate.
(c) Definitions.—In this section:
(1) The term "covered individually identifiable Department employee data" means individually identifiable Department employee data obtained by—
(A) a contractor pursuant to the performance of a contract described in subsection (a) by such contractor; or
(B) a subcontractor pursuant to the performance of a subcontract under such a contract by such subcontractor.
(2) The term "individually identifiable Department employee data" means information related to an employee of the Department of Defense, including a member of the Armed Forces, that—
(A) identifies such employee; or
(B) which may be used to infer, by either direct or indirect means, the identity of such an employee to whom the information applies.
(Added Pub. L. 118–31, div. A, title VIII, §803, Dec. 22, 2023, 137 Stat. 312.)
Editorial Notes
References in Text
The date of the enactment of this section, referred to in subsec. (a), is the date of enactment of Pub. L. 118–31, which was approved Dec. 22, 2023.