CHAPTER 39 —SPECIFIC TYPES OF CONTRACTS
Statutory Notes and Related Subsidiaries
Separability
Act June 30, 1949, ch. 288, title VI, §604, formerly title V, §504,
American Security Drones
"SEC. 1821. SHORT TITLE.
"This subtitle may be cited as the 'American Security Drone Act of 2023'.
"SEC. 1822. DEFINITIONS.
"In this subtitle:
"(1)
"(A) An entity included on the Consolidated Screening List.
"(B) Any entity that is subject to extrajudicial direction from a foreign government, as determined by the Secretary of Homeland Security.
"(C) Any entity the Secretary of Homeland Security, in coordination with the Attorney General, Director of National Intelligence, and the Secretary of Defense, determines poses a national security risk.
"(D) Any entity domiciled in the People's Republic of China or subject to influence or control by the Government of the People's Republic of China or the Communist Party of the People's Republic of China, as determined by the Secretary of Homeland Security.
"(E) Any subsidiary or affiliate of an entity described in subparagraphs (A) through (D).
"(2)
"(3)
"SEC. 1823. PROHIBITION ON PROCUREMENT OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(b)
"(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;
"(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or
"(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.
"(c)
"(d)
"(e)
"(f)
"(1) with the approval of the Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
"(2) upon notification to—
"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(B) the Committee on Oversight and Accountability in the House of Representatives; and
"(C) other appropriate congressional committees of jurisdiction.
"SEC. 1824. PROHIBITION ON OPERATION OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(1)
"(2)
"(b)
"(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;
"(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or
"(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.
"(c)
"(d)
"(e)
"(f)
"(1) with the approval of the Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
"(2) upon notification to—
"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(B) the Committee on Oversight and Accountability in the House of Representatives; and
"(C) other appropriate congressional committees of jurisdiction.
"(g)
"SEC. 1825. PROHIBITION ON USE OF FEDERAL FUNDS FOR PROCUREMENT AND OPERATION OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(1) to procure a covered unmanned aircraft system that is manufactured or assembled by a covered foreign entity; or
"(2) in connection with the operation of such a drone or unmanned aircraft system.
"(b)
"(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;
"(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or
"(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.
"(c)
"(d)
"(e)
"(1) with the approval of the Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
"(2) upon notification to—
"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(B) the Committee on Oversight and Accountability in the House of Representatives; and
"(C) other appropriate congressional committees of jurisdiction.
"(f)
"SEC. 1826. PROHIBITION ON USE OF GOVERNMENT-ISSUED PURCHASE CARDS TO PURCHASE COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"Effective immediately, Government-issued Purchase Cards may not be used to procure any covered unmanned aircraft system from a covered foreign entity.
"SEC. 1827. MANAGEMENT OF EXISTING INVENTORIES OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(b)
"(c)
"(d)
"SEC. 1828. COMPTROLLER GENERAL REPORT.
"Not later than 275 days after the date of the enactment of this Act [Dec. 22, 2023], the Comptroller General of the United States shall submit to Congress a report on the amount of commercial off-the-shelf drones and covered unmanned aircraft systems procured by Federal departments and agencies from covered foreign entities, except that nothing in this section shall apply to any element of the intelligence community.
"SEC. 1829. GOVERNMENT-WIDE POLICY FOR PROCUREMENT OF UNMANNED AIRCRAFT SYSTEMS.
"(a)
"(1) for non-Department of Defense and non-intelligence community operations; and
"(2) through grants and cooperative agreements entered into with non-Federal entities.
"(b)
"(1) Protections to ensure controlled access to an unmanned aircraft system.
"(2) Protecting software, firmware, and hardware by ensuring changes to an unmanned aircraft system are properly managed, including by ensuring an unmanned aircraft system can be updated using a secure, controlled, and configurable mechanism.
"(3) Cryptographically securing sensitive collected, stored, and transmitted data, including proper handling of privacy data and other controlled unclassified information.
"(4) Appropriate safeguards necessary to protect sensitive information, including during and after use of an unmanned aircraft system.
"(5) Appropriate data security to ensure that data is not transmitted to or stored in non-approved locations.
"(6) The ability to opt out of the uploading, downloading, or transmitting of data that is not required by law or regulation and an ability to choose with whom and where information is shared when it is required.
"(c)
"(d)
"(1) the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation, as necessary, to implement the policy; and
"(2) any Federal department or agency or other Federal entity not subject to, or not subject solely to, the Federal Acquisition Regulation shall revise applicable policy, guidance, or regulations, as necessary, to implement the policy.
"(e)
"(1) incorporate policies to implement the exemptions contained in this subtitle; and
"(2) incorporate an exemption to the policy in the case of a head of the procuring department or agency determining, in writing, that no product that complies with the information security requirements described in subsection (b) is capable of fulfilling mission critical performance requirements, and such determination—
"(A) may not be delegated below the level of the Deputy Secretary, or Administrator, of the procuring department or agency;
"(B) shall specify—
"(i) the quantity of end items to which the waiver applies and the procurement value of those items; and
"(ii) the time period over which the waiver applies, which shall not exceed three years;
"(C) shall be reported to the Office of Management and Budget following issuance of such a determination; and
"(D) not later than 30 days after the date on which the determination is made, shall be provided to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives.
"SEC. 1830. STATE, LOCAL, AND TERRITORIAL LAW ENFORCEMENT AND EMERGENCY SERVICE EXEMPTION.
"(a)
"(b)
"SEC. 1831. STUDY.
"(a)
"(1)
"(2)
"(A) A description of the current and future global and domestic market for covered unmanned aircraft systems that are not widely commercially available except from a covered foreign entity.
"(B) A description of the sustainability, availability, cost, and quality of secure sources of covered unmanned aircraft systems domestically and from sources in allied and partner countries.
"(C) The plan of the Secretary of Defense to address any gaps or deficiencies identified in subparagraph (B), including through the use of funds available under the Defense Production Act of 1950 (
"(D) Such other information as the Under Secretary of Defense for Acquisition and Sustainment determines to be appropriate.
"(3)
"(A) The Committees on Armed Services of the Senate and the House of Representatives.
"(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives.
"(C) The Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology of the House of Representatives.
"(D) The Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
"(E) The Committee on Transportation and Infrastructure of the House of Representatives.
"(F) The Committee on Homeland Security of the House of Representatives.
"(G) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
"SEC. 1832. EXCEPTIONS.
"(a)
"(b)
"(c)
"SEC. 1833. SUNSET.
"Sections 1823, 1824, and 1825 shall cease to have effect on the date that is five years after the date of the enactment of this Act [Dec. 22, 2023]."
Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
"(a)
"(A) procure or obtain or extend or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or
"(B) enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
"(2) Nothing in paragraph (1) shall be construed to—
"(A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
"(B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
"(b)
"(2) In implementing the prohibition in paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs, including the heads of the Federal Communications Commission, the Department of Agriculture, the Department of Homeland Security, the Small Business Administration, and the Department of Commerce, shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
"(3) Nothing in this subsection shall be construed to—
"(A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
"(B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
"(c)
"(d)
"(1)
"(A) provides a compelling justification for the additional time to implement the requirements under such subsection, as determined by the head of the executive agency; and
"(B) submits to the head of the executive agency, who shall not later than 30 days thereafter submit to the appropriate congressional committees, a full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the entity's supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the entity's systems.
"(2)
"(f)
"(1)
"(A) the Committee on Banking, Housing, and Urban Affairs, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate; and
"(B) the Committee on Financial Services, the Committee on Foreign Affairs, and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives.
"(2)
"(3)
"(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
"(B) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
"(C) Telecommunications or video surveillance services provided by such entities or using such equipment.
"(D) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
"(4)
[
Share-in-Savings Contracts
Act June 30, 1949, ch. 288, title III, §317, as added
"(a)
"(2)(A) Except as provided in subparagraph (B), a share-in-savings contract shall be awarded for a period of not more than five years.
"(B) A share-in-savings contract may be awarded for a period greater than five years, but not more than 10 years, if the head of the agency determines in writing prior to award of the contract that—
"(i) the level of risk to be assumed and the investment to be undertaken by the contractor is likely to inhibit the government from obtaining the needed information technology competitively at a fair and reasonable price if the contract is limited in duration to a period of five years or less; and
"(ii) usage of the information technology to be acquired is likely to continue for a period of time sufficient to generate reasonable benefit for the government.
"(3) Contracts awarded pursuant to the authority of this section shall, to the maximum extent practicable, be performance-based contracts that identify objective outcomes and contain performance standards that will be used to measure achievement and milestones that must be met before payment is made.
"(4) Contracts awarded pursuant to the authority of this section shall include a provision containing a quantifiable baseline that is to be the basis upon which a savings share ratio is established that governs the amount of payment a contractor is to receive under the contract. Before commencement of performance of such a contract, the senior procurement executive of the agency shall determine in writing that the terms of the provision are quantifiable and will likely yield value to the Government.
"(5)(A) The head of the agency may retain savings realized through the use of a share-in-savings contract under this section that are in excess of the total amount of savings paid to the contractor under the contract, but may not retain any portion of such savings that is attributable to a decrease in the number of civilian employees of the Federal Government performing the function. Except as provided in subparagraph (B), savings shall be credited to the appropriation or fund against which charges were made to carry out the contract and shall be used for information technology.
"(B) Amounts retained by the agency under this subsection shall—
"(i) without further appropriation, remain available until expended; and
"(ii) be applied first to fund any contingent liabilities associated with share-in-savings procurements that are not fully funded.
"(b)
"(A) appropriations available for the performance of the contract;
"(B) appropriations available for acquisition of the information technology procured under the contract, and not otherwise obligated; or
"(C) funds subsequently appropriated for payments of costs of cancellation or termination, subject to the limitations in paragraph (3).
"(2) The amount payable in the event of cancellation or termination of a share-in-savings contract shall be negotiated with the contractor at the time the contract is entered into.
"(3)(A) Subject to subparagraph (B), the head of an executive agency may enter into share-in-savings contracts under this section in any given fiscal year even if funds are not made specifically available for the full costs of cancellation or termination of the contract if funds are available and sufficient to make payments with respect to the first fiscal year of the contract and the following conditions are met regarding the funding of cancellation and termination liability:
"(i) The amount of unfunded contingent liability for the contract does not exceed the lesser of—
"(I) 25 percent of the estimated costs of a cancellation or termination; or
"(II) $5,000,000.
"(ii) Unfunded contingent liability in excess of $1,000,000 has been approved by the Director of the Office of Management and Budget or the Director's designee.
"(B) The aggregate number of share-in-savings contracts that may be entered into under subparagraph (A) by all executive agencies to which this chapter applies in a fiscal year may not exceed 5 in each of fiscal years 2003, 2004, and 2005.
"(c)
"(1) The term 'contractor' means a private entity that enters into a contract with an agency.
"(2) The term 'savings' means—
"(A) monetary savings to an agency; or
"(B) savings in time or other benefits realized by the agency, including enhanced revenues (other than enhanced revenues from the collection of fees, taxes, debts, claims, or other amounts owed the Federal Government).
"(3) The term 'share-in-savings contract' means a contract under which—
"(A) a contractor provides solutions for—
"(i) improving the agency's mission-related or administrative processes; or
"(ii) accelerating the achievement of agency missions; and
"(B) the head of the agency pays the contractor an amount equal to a portion of the savings derived by the agency from—
"(i) any improvements in mission-related or administrative processes that result from implementation of the solution; or
"(ii) acceleration of achievement of agency missions.
"(d)
Executive Documents
Ex. Ord. No. 13496. Notification of Employee Rights Under Federal Labor Laws
Ex. Ord. No. 13496, Jan. 30, 2009, 74 F.R. 6107, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act,
"1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form, and containing such content as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically. The notice shall include the information contained in the notice published by the Secretary of Labor in the Federal Register (Secretary's Notice).
"2. The contractor will comply with all provisions of the Secretary's Notice, and related rules, regulations, and orders of the Secretary of Labor.
"3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]]. Such other sanctions or remedies may be imposed as are provided in Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]], or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law.
"4. The contractor will include the provisions of paragraphs (1) through (3) above in every subcontract entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]]) so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, that if the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States."
(a) The Secretary of Labor (Secretary) shall be responsible for the administration and enforcement of this order. The Secretary shall adopt such rules and regulations and issue such orders as are necessary and appropriate to achieve the purposes of this order.
(b) Within 120 days of the effective date of this order, the Secretary shall initiate a rulemaking to prescribe the size, form, and content of the notice to be posted by a contractor under paragraph 1 of the contract clause described in section 2 of this order. Such notice shall describe the rights of employees under Federal labor laws, consistent with the policy set forth in section 1 of this order.
(c) Whenever the Secretary finds that an act of Congress, clarification of existing law by the courts or the National Labor Relations Board, or other circumstances make modification of the contractual provisions set out in subsection (a) of this section necessary to achieve the purposes of this order, the Secretary promptly shall issue such rules, regulations, or orders as are needed to cause the substitution or addition of appropriate contractual provisions in Government contracts thereafter entered into.
(b) The Secretary may, if the Secretary finds that special circumstances require an exemption in order to serve the national interest, exempt a contracting department or agency from the requirements of any or all of the provisions of section 2 of this order with respect to a particular contract or subcontract or class of contracts or subcontracts.
(a) The Secretary may investigate any Government contractor, subcontractor, or vendor to determine whether the contractual provisions required by section 2 of this order have been violated.
Such investigations shall be conducted in accordance with procedures established by the Secretary.
(b) The Secretary shall receive and investigate complaints by employees of a Government contractor or subcontractor, where such complaints allege a failure to perform or a violation of the contractual provisions required by section 2 of this order.
(a) The Secretary, or any agency or officer in the executive branch lawfully designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, regarding compliance with this order as the Secretary may deem advisable.
(b) The Secretary may hold hearings, or cause hearings to be held, in accordance with subsection (a) of this section, prior to imposing, ordering, or recommending the imposition of sanctions under this order. Neither an order for cancellation, termination, or suspension of any contract or debarment of any contractor from further Government contracts under section 7(b) of this order nor the inclusion of a contractor on a published list of noncomplying contractors under section 7(c) of this order shall be carried out without affording the contractor an opportunity for a hearing.
(a) after consulting with the contracting department or agency, direct that department or agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor to comply with the contractual provisions required by section 2 of this order; contracts may be cancelled, terminated, or suspended absolutely, or continuance of contracts may be conditioned upon future compliance: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of the contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that completion of the contract is essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of the contracting department or agency, or his or her designee, continues to object to the issuance of such directive;
(b) after consulting with each affected contracting department or agency, provide that one or more contracting departments or agencies shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary that such contractor has complied with and will carry out the provisions of this order: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of each contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that further contracts or extensions or other modifications of existing contracts with the noncomplying contractor are essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of a contracting department or agency, or his or her designee, continues to object to the issuance of such directive; and
(c) publish, or cause to be published, the names of contractors that have, in the judgment of the Secretary, failed to comply with the provisions of this order or of related rules, regulations, and orders of the Secretary.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13502. Use of Project Labor Agreements for Federal Construction Projects
Ex. Ord. No. 13502, Feb. 6, 2009, 74 F.R. 6985, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act,
(b) The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.
(a) The term "labor organization" as used in this order means a labor organization as defined in
(b) The term "construction" as used in this order means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.
(c) The term "large-scale construction project" as used in this order means a construction project where the total cost to the Federal Government is $25 million or more.
(d) The term "executive agency" as used in this order has the same meaning as in
(e) The term "project labor agreement" as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in
(b) If an executive agency determines under subsection (a) that the use of a project labor agreement will satisfy the criteria in clauses (i) and (ii) of that subsection, the agency may, if appropriate, require that every contractor or subcontractor on the project agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations.
(a) bind all contractors and subcontractors on the Construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and
(f) fully conform to all statutes, regulations, and Executive Orders.
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13981. Protecting the United States From Certain Unmanned Aircraft Systems
Ex. Ord. No. 13981, Jan. 18, 2021, 86 F.R. 6821, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America,
I, DONALD J. TRUMP, President of the United States of America, find that additional actions are necessary to ensure the security of Unmanned Aircraft Systems (UAS) owned, operated, and controlled by the Federal Government; to secure the integrity of American infrastructure, including America's National Airspace System (NAS); to protect our law enforcement and warfighters; and to maintain and expand our domestic industrial base capabilities.
Accordingly, I hereby order:
United States Government operations involving UAS require accessing, collecting, and maintaining data, which could reveal sensitive information. The use of UAS and critical components manufactured and developed by foreign adversaries, or by persons under their control, may allow this sensitive information to be accessed by or transferred to foreign adversaries. Furthermore, the manufacturing of UAS involves combining several critical components, including advanced manufacturing techniques, artificial intelligence, microelectronic components, and multi-spectral sensors. The Nation's capability to produce UAS and certain critical UAS components domestically is critical for national defense and the security and strength of our defense industrial base.
It is the policy of the United States, therefore, to prevent the use of taxpayer dollars to procure UAS that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries, and to encourage the use of domestically produced UAS.
(i) directly procuring or indirectly procuring through a third party, such as a contractor, a covered UAS;
(ii) providing Federal financial assistance (e.g., through award of a grant) that may be used to procure a covered UAS;
(iii) entering into, or renewing, a contract, order, or other commitment for the procurement of a covered UAS; or
(iv) otherwise providing Federal funding for the procurement of a covered UAS.
(b) After conducting the review described in subsection (a) of this section, the heads of all agencies shall each submit a report to the Director of the Office of Management and Budget identifying any authority to take the actions outlined in subsections (a)(i) through (iv) of this section.
(b) Within 180 days of the date of this order, the Director of National Intelligence, in consultation with the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Science and Technology Policy, and the heads of other agencies, as appropriate, shall review the reports required by subsection (a) of this section and submit a report to the President assessing the security risks posed by the existing Federal UAS fleet and outlining potential steps that could be taken to mitigate these risks, including, if warranted, discontinuing all Federal use of covered UAS and the expeditious removal of UAS from Federal service.
(b) The Director of the Office of Management and Budget shall work with the heads of all agencies to identify possible sources of funding to replace covered UAS in the Federal fleet in future submissions of the President's Budget request.
(a) The term "adversary country" means the Democratic People's Republic of Korea, the Islamic Republic of Iran, the People's Republic of China, the Russian Federation, or, as determined by the Secretary of Commerce, any other foreign nation, foreign area, or foreign non-government entity engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States.
(b) The term "covered UAS" means any UAS that:
(i) is manufactured, in whole or in part, by an entity domiciled in an adversary country;
(ii) uses critical electronic components installed in flight controllers, ground control system processors, radios, digital transmission devices, cameras, or gimbals manufactured, in whole or in part, in an adversary country;
(iii) uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country;
(iv) uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country; or
(v) contains hardware and software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country.
(c) The term "critical electronic component" means any electronic device that stores, manipulates, or transfers digital data. The term critical electronic component does not include, for example, passive electronics such as resistors, and non-data transmitting motors, batteries, and wiring.
(d) The term "entity" means a partnership, association, trust, joint venture, corporation, government, group, subgroup, other organization, or person.
(e) The term "Intelligence Community" has the same meaning set forth for that term in
(f) The term "National Airspace System" (NAS) means the common network of United States airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. The term also includes system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.
(g) The term "Unmanned Aircraft Systems" (UAS) means any unmanned aircraft, and the associated elements that are required for the pilot or system operator to operate safely and efficiently in the NAS, including communication links, the components that control the unmanned aircraft, and all critical electronic components. The term UAS does not include any separate communication device, such as a cellular phone or tablet, designed to perform independently of a UAS system, which may be incorporated into the operation of a UAS.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
Ex. Ord. No. 14063. Use of Project Labor Agreements for Federal Construction Projects
Ex. Ord. No. 14063, Feb. 4, 2022, 87 F.R. 7363, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act,
(b) Project labor agreements are often effective in preventing these problems from developing because they provide structure and stability to large-scale construction projects. Such agreements avoid labor-related disruptions on projects by using dispute-resolution processes to resolve worksite disputes and by prohibiting work stoppages, including strikes and lockouts. They secure the commitment of all stakeholders on a construction site that the project will proceed efficiently without unnecessary interruptions. They also advance the interests of project owners, contractors, and subcontractors, including small businesses. For these reasons, owners and contractors in both the public and private sector routinely use project labor agreements, thereby reducing uncertainties in large-scale construction projects. The use of project labor agreements is fully consistent with the promotion of small business interests.
(c) Accordingly, it is the policy of the Federal Government for agencies to use project labor agreements in connection with large-scale construction projects to promote economy and efficiency in Federal procurement.
(a) "Labor organization" means a labor organization as defined in
(b) "Construction" means construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property.
(c) "Large-scale construction project" means a Federal construction project within the United States for which the total estimated cost of the construction contract to the Federal Government is $35 million or more. The Federal Acquisition Regulatory Council (FAR Council), in consultation with the Council of Economic Advisers, may adjust this threshold based on inflation using the process at
(d) "Agency" means an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act,
(e) "Project labor agreement" means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in
(a) bind all contractors and subcontractors on the construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors on the construction project to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and
(f) fully conform to all statutes, regulations, Executive Orders, and Presidential Memoranda.
(a) Requiring a project labor agreement on the project would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement. Such a finding shall be based on the following factors:
(i) The project is of short duration and lacks operational complexity;
(ii) The project will involve only one craft or trade;
(iii) The project will involve specialized construction work that is available from only a limited number of contractors or subcontractors;
(iv) The agency's need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable; or
(v) The project implicates other similar factors deemed appropriate in regulations or guidance issued pursuant to section 8 of this order.
(b) Based on an inclusive market analysis, requiring a project labor agreement on the project would substantially reduce the number of potential bidders so as to frustrate full and open competition.
(c) Requiring a project labor agreement on the project would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda.
(b) On a quarterly basis, agencies shall report to the Office of Management and Budget (OMB) on their use of project labor agreements on large-scale construction projects and on the exceptions granted under section 5 of this order.
(b) The Director of OMB shall, to the extent permitted by law, issue guidance to implement the requirements of sections 5 and 6 of this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
§3901. Contracts awarded using procedures other than sealed-bid procedures
(a)
(b)
(1)
(2)
(3)
(
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3901 | 41:254(a). | June 30, 1949, ch. 288, title III, §304(a), |
In subsection (b)(2), the words "in its discretion" are omitted as unnecessary.
Editorial Notes
Amendments
2018—Subsec. (b)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by
§3902. Severable services contracts for periods crossing fiscal years
(a)
(b)
(
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3902 | 41:253l. | June 30, 1949, ch. 288, title III, §303L, as added |
Statutory Notes and Related Subsidiaries
Severable Services and Multiyear Contract Authority of Judicial Entities
§3903. Multiyear contracts
(a)
(b)
(1) funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract; and
(2) the executive agency determines that—
(A) the need for the property or services is reasonably firm and continuing over the period of the contract; and
(B) a multiyear contract will serve the best interests of the Federal Government by encouraging full and open competition or promoting economy in administration, performance, and operation of the agency's programs.
(c)
(d)
(e)
(f)
(
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3903(a) | 41:254c(d) (1st sentence). | June 30, 1949, ch. 288, title III, §304B, as added |
| 3903(b) | 41:254c(a). | |
| 3903(c) | 41:254c(b). | |
| 3903(d) | 41:254c(c). | |
| 3903(e) | 41:254c(d) (last sentence). | |
| 3903(f) | 41:254c(e). |
§3904. Contract authority for severable services contracts and multiyear contracts
(a)
(b)
(c)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of
(d)
(e)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent and under the same conditions as the head of an executive agency under the authority of
(2) multiyear contracts for the acquisition of property and services to the same extent and under the same conditions as executive agencies under the authority of
(f)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of
(g)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of
(h)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year under the authority of
(2) multiyear contracts for the acquisition of property and services under the authority of
(
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3904(a) | 41:253l–1. | |
| 3904(b) | 41:253l–2. | |
| 3904(c) | 41:253l–3. | |
| 3904(d) | 41:253l–4. | |
| 3904(e) | 41:253l–5. | |
| 3904(f) | 41:253l–6. | |
| 3904(g) | 41:253l–7. | |
| 3904(h) | 41:253l–8. |
In subsections (a)–(c) and (e)–(h), the words "procurement of severable services" are substituted for "acquisition of severable services" for consistency with 41:253l, restated as section 3902 of the revised title.
In subsection (c), the words "During fiscal year 2001 and any succeeding fiscal year" are omitted as obsolete.
In subsection (d), the words "Beginning on December 21, 2000, and hereafter" are omitted as obsolete.
In subsection (e), the text of 41:253l–5(b) is omitted as obsolete.
In subsection (f), the text of 41:253l–6(b) is omitted as obsolete.
In subsection (g), the text of 41:253l–7(b) is omitted as obsolete.
In subsection (h), the text of 41:253l–8(b) is omitted as obsolete.
§3905. Cost contracts
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3905(a) | 41:254(b) (1st sentence words before 1st comma). | June 30, 1949, ch. 288, title III, §304(b), |
| 3905(b) | 41:254(b) (1st sentence words after 1st comma). | |
| 3905(c) | 41:254(b) (last sentence words before semicolon). | |
| 3905(d) | 41:254(b) (last sentence words after semicolon). |
§3906. Cost-reimbursement contracts
(a)
(b)
(c)
(1) when and under what circumstances cost-reimbursement contracts are appropriate;
(2) the acquisition plan findings necessary to support a decision to use cost-reimbursement contracts; and
(3) the acquisition workforce resources necessary to award and manage cost-reimbursement contracts.
(d)
(1)
(2)
(A) the total number and value of contracts awarded and orders issued during the covered fiscal year;
(B) the total number and value of cost-reimbursement contracts awarded and orders issued during the covered fiscal year; and
(C) an assessment of the effectiveness of the regulations promulgated pursuant to subsection (b) in ensuring the appropriate use of cost-reimbursement contracts.
(3)
(A)
(B)
(e)
(1) the Committee on Oversight and Government Reform of the House of Representatives;
(2) the Committee on Homeland Security and Governmental Affairs of the Senate;
(3) the Committees on Appropriations of the House of Representatives and the Senate; and
(4) in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives.
(
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3906 | 41:254 note. |
In subsection (b), the words "Not later than 270 days after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall address" are substituted for "shall be revised to address" to reflect the permanence of the provision.
In subsection (d), the words "Subject to subsection (f)" are omitted as unnecessary.
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.