§ 251. — Declaration of purpose of this subchapter.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC251]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 251. Declaration of purpose of this subchapter
The purpose of this subchapter is to facilitate the procurement of
property and services.
(June 30, 1949, ch. 288, title III, Sec. 301, 63 Stat. 393; July 12,
1952, ch. 703, Sec. 1(m), 66 Stat. 594.)
Amendments
1952--Act July 12, 1952, substituted ``property'' for ``supplies''.
Effective Date of 1996 Amendment
Pub. L. 104-106, div. D, title XLIV, Sec. 4401, Feb. 10, 1996, 110
Stat. 678, provided that:
``(a) Effective Date.--Except as otherwise provided in this division
[div. D (Secs. 4001-4402) of Pub. L. 104-106, see Short Title of 1996
Amendment note below], this division and the amendments made by this
division shall take effect on the date of the enactment of this Act
[Feb. 10, 1996].
``(b) Applicability of Amendments.--
``(1) Solicitations, unsolicited proposals, and related
contracts.--An amendment made by this division shall apply, in the
manner prescribed in the final regulations promulgated pursuant to
section 4402 [set out below] to implement such amendment, with
respect to any solicitation that is issued, any unsolicited proposal
that is received, and any contract entered into pursuant to such a
solicitation or proposal, on or after the date described in
paragraph (3).
``(2) Other matters.--An amendment made by this division shall
also apply, to the extent and in the manner prescribed in the final
regulations promulgated pursuant to section 4402 to implement such
amendment, with respect to any matter related to--
``(A) a contract that is in effect on the date described in
paragraph (3);
``(B) an offer under consideration on the date described in
paragraph (3); or
``(C) any other proceeding or action that is ongoing on the
date described in paragraph (3).
``(3) Demarcation date.--The date referred to in paragraphs (1)
and (2) is the date specified in such final regulations. The date so
specified shall be January 1, 1997, or any earlier date that is not
within 30 days after the date on which such final regulations are
published.''
Effective Date of 1994 Amendment
Pub. L. 103-355, title X, Sec. 10001, Oct. 13, 1994, 108 Stat. 3404,
provided that:
``(a) Effective Date.--Except as otherwise provided in this Act,
this Act [see Short Title of 1994 Amendment note below] and the
amendments made by this Act shall take effect on the date of the
enactment of this Act [Oct. 13, 1994].
``(b) Applicability of Amendments.--(1) An amendment made by this
Act shall apply, in the manner prescribed in the final regulations
promulgated pursuant to section 10002 to implement such amendment [set
out below], with respect to any solicitation that is issued, any
unsolicited proposal that is received, and any contract entered into
pursuant to such a solicitation or proposal, on or after the date
described in paragraph (3).
``(2) An amendment made by this Act shall also apply, to the extent
and in the manner prescribed in the final regulations promulgated
pursuant to section 10002 to implement such amendment, with respect to
any matter related to--
``(A) a contract that is in effect on the date described in
paragraph (3);
``(B) an offer under consideration on the date described in
paragraph (3); or
``(C) any other proceeding or action that is ongoing on the date
described in paragraph (3).
``(3) The date referred to in paragraphs (1) and (2) is the date
specified in such final regulations [Oct. 1, 1995, see 60 F.R. 48231,
Sept. 18, 1995]. The date so specified shall be October 1, 1995, or any
earlier date that is not within 30 days after the date on which such
final regulations are published.
``(c) Immediate Applicability of Certain Amendments.--
Notwithstanding subsection (b), the amendments made by the following
provisions of this Act apply on and after the date of the enactment of
this Act [Oct. 13, 1994]: sections 1001, 1021, 1031, 1051, 1071, 1092,
1201, 1506(a), 1507, 1554, 2002(a), 2191, 3062(a), 3063, 3064,
3065(a)(1), 3065(b), 3066, 3067, 6001(a), 7101, 7103, 7205, and 7206,
the provisions of subtitles A, B, and C of title III [Secs. 3001-3025],
and the provisions of title V [see Tables for classification].''
Effective Date of 1984 Amendment
Pub. L. 98-369, div. B, title VII, Sec. 2751, July 18, 1984, 98
Stat. 1203, provided that:
``(a) Except as provided in subsection (b), the amendments made by
this title [see Short Title of 1984 Amendments note below] shall apply
with respect to any solicitation for bids or proposals issued after
March 31, 1985.
``(b) The amendments made by section 2713 [amending section 759 of
former Title 40, Public Buildings, Property, and Works, and enacting
provisions set out as a note under section 759 of former Title 40] and
subtitle D [enacting sections 3551 to 3556 of Title 31, Money and
Finance] shall apply with respect to any protest filed after January 14,
1985.''
Effective Date
Section effective July 1, 1949, see section 605, formerly section
505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act
Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.
Short Title of 1996 Amendment
Pub. L. 104-106, div. D, Sec. 4001, Feb. 10, 1996, 110 Stat. 642, as
amended by Pub. L. 104-208, div. A, title I, Sec. 101(f) [title VIII,
Sec. 808(a)], Sept. 30, 1996, 110 Stat. 3009-314, 3009-393, provided
that: ``This division [div. D (Secs. 4001-4402) of Pub. L. 104-106, see
Tables for classification] and division E [Secs. 5001-5703 of Pub. L.
104-106, repealed and reenacted, generally, as subtitle III (Sec. 11101
et seq.) of Title 40, Public Buildings, Property, and Works, by Pub. L.
107-217, Secs. 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304, see Tables
for complete classification] may be cited as the `Clinger-Cohen Act of
1996'.''
Short Title of 1994 Amendment
Pub. L. 103-355, Sec. 1, Oct. 13, 1994, 108 Stat. 3243, provided
that: ``This Act [see Tables for classification] may be cited as the
`Federal Acquisition Streamlining Act of 1994'.''
Short Title of 1984 Amendments
Pub. L. 98-577, Sec. 1, Oct. 30, 1984, 98 Stat. 3066, provided that
this Act [enacting sections 253c to 253h, 414a, 418a, and 418b of this
title, repealing section 2303a of Title 10, Armed Forces, amending
sections 253, 253b, 259, 403, and 416 of this title, sections 2302,
2304, 2311, and 2320 of Title 10, and sections 637 and 644 of Title 15,
Commerce and Trade, and enacting provisions set out as notes under this
section, section 416 of this title, and sections 637 and 644 of Title
15] may be cited as the ``Small Business and Federal Procurement
Competition Enhancement Act of 1984''.
Pub. L. 98-369, div. B, title VII, Sec. 2701, July 18, 1984, 98
Stat. 1175, provided that: ``This title [enacting sections 253a, 253b,
416 to 419 of this title and sections 3551 to 3556 of Title 31, Money
and Finance, amending sections 252, 253, 254, 257, 258, 259, 260, 403,
405, and 414 of this title, sections 2301 to 2306, 2310, 2311, 2313, and
2356 of Title 10, Armed Forces, and section 759 of former Title 40,
Public Buildings, Property, and Works, and enacting provisions set out
as notes under this section, sections 253, 403, and 407 of this title,
section 2304 of Title 10, and section 759 of former Title 40] may be
cited as the `Competition in Contracting Act of 1984'.''
Regulations
Pub. L. 104-106, div. D, title XLIV, Sec. 4402, Feb. 10, 1996, 110
Stat. 678, provided that:
``(a) Proposed Revisions.--Proposed revisions to the Federal
Acquisition Regulation and such other proposed regulations (or revisions
to existing regulations) as may be necessary to implement this Act [see
Tables for classification] shall be published in the Federal Register
not later than 210 days after the date of the enactment of this Act
[Feb. 10, 1996].
``(b) Public Comment.--The proposed regulations described in
subsection (a) shall be made available for public comment for a period
of not less than 60 days.
``(c) Final Regulations.--Final regulations shall be published in
the Federal Register not later than 330 days after the date of enactment
of this Act [Feb. 10, 1996].
``(d) Modifications.--Final regulations promulgated pursuant to this
section to implement an amendment made by this Act may provide for
modification of an existing contract without consideration upon the
request of the contractor.
``(e) Savings Provisions.--
``(1) Validity of prior actions.--Nothing in this division [div.
D (Secs. 4001-4402) of Pub. L. 104-106, see Short Title of 1996
Amendment note above] shall be construed to affect the validity of
any action taken or any contract entered into before the date
specified in the regulations pursuant to section 4401(b)(3) [set out
as an Effective Date of 1996 Amendment note above] except to the
extent and in the manner prescribed in such regulations.
``(2) Renegotiation and modification of preexisting contracts.--
Except as specifically provided in this division, nothing in this
division shall be construed to require the renegotiation or
modification of contracts in existence on the date of the enactment
of this Act [Feb. 10, 1996].
``(3) Continued applicability of preexisting law.--Except as
otherwise provided in this division, a law amended by this division
shall continue to be applied according to the provisions thereof as
such law was in effect on the day before the date of the enactment
of this Act until--
``(A) the date specified in final regulations implementing
the amendment of that law (as promulgated pursuant to this
section); or
``(B) if no such date is specified in regulations, January
1, 1997.''
Pub. L. 103-355, title X, Sec. 10002, Oct. 13, 1994, 108 Stat. 3404,
provided that:
``(a) Proposed Revisions.--Proposed revisions to the Federal
Acquisition Regulation and such other proposed regulations (or revisions
to existing regulations) as may be necessary to implement this Act [see
Short Title of 1994 Amendment note above] shall be published in the
Federal Register not later than 210 days after the date of the enactment
of this Act [Oct. 13, 1994].
``(b) Public Comment.--The proposed regulations described in
subsection (a) shall be made available for public comment for a period
of not less than 60 days.
``(c) Final Regulations.--Final regulations shall be published in
the Federal Register not later than 330 days after the date of enactment
of this Act.
``(d) Modifications.--Final regulations promulgated pursuant to this
section to implement an amendment made by this Act may provide for
modification of an existing contract without consideration upon the
request of the contractor.
``(e) Requirement for Clarity.--Officers and employees of the
Federal Government who prescribe regulations to implement this Act and
the amendments made by this Act shall make every effort practicable to
ensure that the regulations are concise and are easily understandable by
potential offerors as well as by Government officials.
``(f) Savings Provisions.--(1) Nothing in this Act shall be
construed to affect the validity of any action taken or any contract
entered into before the date specified in the regulations pursuant to
section 10001(b)(3) [see Effective Date of 1994 Amendment note above]
except to the extent and in the manner prescribed in such regulations.
``(2) Except as specifically provided in this Act, nothing in this
Act shall be construed to require the renegotiation or modification of
contracts in existence on the date of the enactment of this Act [Oct.
13, 1994].
``(3) Except as otherwise provided in this Act, a law amended by
this Act shall continue to be applied according to the provisions
thereof as such law was in effect on the day before the date of the
enactment of this Act until--
``(A) the date specified in final regulations implementing the
amendment of that law (as promulgated pursuant to this section); or
``(B) if no such date is specified in regulations, October 1,
1995.''
Separability
Section 604, formerly Sec. 504, of act June 30, 1949, renumbered by
act Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583, provided that:
``If any provision of this Act [see Tables for classification], or the
application thereof to any person or circumstances, is held invalid, the
remainder of this Act, and the application of such provision to other
persons or circumstances, shall not be affected thereby.''
Evaluation by Comptroller General
Pub. L. 103-355, title X, Sec. 10003, Oct. 13, 1994, 108 Stat. 3405,
provided that:
``(a) Evaluation Relating to Issuance of Regulations.--Not later
than 180 days after the issuance in final form of revisions to the
Federal Acquisition Regulation pursuant to section 10002 [set out
above], the Comptroller General shall submit to Congress a report
evaluating compliance with such section.
``(b) Evaluation of Implementation of Regulations.--Not later than
18 months after issuance in final form of revisions to the Federal
Acquisition Regulation pursuant to section 10002, the Comptroller
General shall submit to the committees referred to in subsection (c) a
report evaluating the effectiveness of the regulations implementing this
Act [see Short Title of 1994 Amendment note above] in streamlining the
acquisition system and fulfilling the other purposes of this Act.
``(c) Committees Designated To Receive the Reports.--The Comptroller
General shall submit the reports required by this section to--
``(1) the Committees on Governmental Affairs, on Armed Services,
and on Small Business of the Senate; and
``(2) the Committees on Government Operations [now Committee on
Government Reform], on Armed Services, and on Small Business of the
House of Representatives.''
Congressional Statement of Purpose
Pub. L. 98-577, title I, Sec. 101, Oct. 30, 1984, 98 Stat. 3066,
provided that: ``The purposes of this Act are to--
``(1) eliminate procurement procedures and practices that
unnecessarily inhibit full and open competition for contracts;
``(2) promote the use of contracting opportunities as a means to
expand the industrial base of the United States in order to ensure
adequate responsive capability of the economy to the increased
demands of the Government in times of national emergency; and
``(3) foster opportunities for the increased participation in
the competitive procurement process of small business concerns and
small business concerns owned and controlled by socially and
economically disadvantaged individuals.''
Commission on Government Procurement
Pub. L. 91-129, Nov. 26, 1969, 83 Stat. 269, as amended by Pub. L.
92-47, July 9, 1971, 85 Stat. 102, established the Commission on
Government Procurement, which was to study and investigate statutes,
rules, regulations, procedures, and practices affecting Government
procurement and to submit a final report to Congress on or before Dec.
31, 1972, on the results of this study, including recommendations for
changes designed to promote economy, efficiency, and effectiveness in
the procurement of goods, services, and facilities by and for the
executive branch of the Government. The Commission terminated 120 days
after submission of the final report.
Ex. Ord. No. 13005. Empowerment Contracting
Ex. Ord. No. 13005, May 21, 1996, 61 F.R. 26069, provided:
In order to promote economy and efficiency in Federal procurement,
it is necessary to secure broad-based competition for Federal contracts.
This broad competition is best achieved where there is an expansive pool
of potential contractors capable of producing quality goods and services
at competitive prices. A great and largely untapped opportunity for
expanding the pool of such contractors can be found in this Nation's
economically distressed communities.
Fostering growth of Federal contractors in economically distressed
communities and ensuring that those contractors become viable businesses
for the long term will promote economy and efficiency in Federal
procurement and help to empower those communities. Fostering growth of
long-term viable contractors will be promoted by offering appropriate
incentives to qualified businesses.
Accordingly, by the authority vested in me as President by the
Constitution and the laws of the United States, including section 486(a)
[now 121(a)] of title 40, United States Code, and section 301 of title
3, United States Code, it is hereby ordered as follows:
Section 1. Policy. The purpose of this order is to strengthen the
economy and to improve the efficiency of the Federal procurement system
by encouraging business development that expands the industrial base and
increases competition.
Sec. 2. Empowerment Contracting Program. In consultation with the
Secretaries of the Departments of Housing and Urban Development, Labor,
and Defense; the Administrator of General Services; the Administrator of
the National Aeronautics and Space Administration; the Administrator of
the Small Business Administration; and the Administrator for Federal
Procurement Policy, the Secretary of the Department of Commerce shall
develop policies and procedures to ensure that agencies, to the extent
permitted by law, grant qualified large businesses and qualified small
businesses appropriate incentives to encourage business activity in
areas of general economic distress, including a price or an evaluation
credit, when assessing offers for government contracts in unrestricted
competitions, where the incentives would promote the policy set forth in
this order. In developing such policies and procedures, the Secretary
shall consider the size of the qualified businesses.
Sec. 3. Monitoring and Evaluation. The Secretary shall:
(a) monitor the implementation and operation of the policies and
procedures developed in accordance with this order;
(b) develop a process to ensure the proper administration of the
program and to reduce the potential for fraud by the intended
beneficiaries of the program;
(c) develop principles and a process to evaluate the effectiveness
of the policies and procedures developed in accordance with this order;
and
(d) by December 1 of each year, issue a report to the President on
the status and effectiveness of the program.
Sec. 4. Implementation Guidelines. In implementing this order, the
Secretary shall:
(a) issue rules, regulations, and guidelines necessary to implement
this order, including a requirement for the periodic review of the
eligibility of qualified businesses and distressed areas;
(b) draft all rules, regulations, and guidelines necessary to
implement this order within 90 days of the date of this order; and
(c) ensure that all policies and procedures and all rules,
regulations, and guidelines adopted and implemented in accordance with
this order minimize the administrative burden on affected agencies and
the procurement process.
Sec. 5. Definitions. For purposes of this Executive order:
(a) ``Agency'' means any authority of the United States that is an
``agency'' under 44 U.S.C. 3502(1), other than those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
(b) ``Area of general economic distress'' shall be defined, for all
urban and rural communities, as any census tract that has a poverty rate
of at least 20 percent or any designated Federal Empowerment Zone,
Supplemental Empowerment Zone, Enhanced Enterprise Community, or
Enterprise Community. In addition, the Secretary may designate as an
area of general economic distress any additional rural or Indian
reservation area after considering the following factors:
(1) Unemployment rate;
(2) Degree of poverty;
(3) Extent of outmigration; and
(4) Rate of business formation and rate of business growth.
(c) ``Qualified large business'' means a large for-profit or not-
for-profit trade or business that (1) employs a significant number of
residents from the area of general economic distress; and (2) either has
a significant physical presence in the area of general economic distress
or has a direct impact on generating significant economic activity in
the area of general economic distress.
(d) ``Qualified small business'' means a small for-profit or not-
for-profit trade or business that (1) employs a significant number of
residents from the area of general economic distress; (2) has a
significant physical presence in the area of general economic distress;
or (3) has a direct impact on generating significant economic activity
in the area of general economic distress.
(e) ``Secretary'' means the Secretary of Commerce.
Sec. 6. Agency Authority. Nothing in this Executive order shall be
construed as displacing the agencies' authority or responsibilities, as
authorized by law, including specifically other programs designed to
promote the development of small or disadvantaged businesses.
Sec. 7. Judicial Review. This Executive order does not create any
right or benefit, substantive or procedural, enforceable at law or
equity by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.
William J. Clinton.
Ex. Ord. No. 13202. Preservation of Open Competition and Government
Neutrality Towards Government Contractors' Labor Relations on Federal
and Federally Funded Construction Projects
Ex. Ord. No. 13202, Feb. 17, 2001, 66 F.R. 11225, as amended by Ex.
Ord. No. 13208, Apr. 6, 2001, 66 F.R. 18717, provided:
By the authority vested in me as President by the Constitution and
laws of the United States of America, including the Federal Property and
Administrative Services Act, 40 U.S.C. 471 et seq. [now chapters 1 to 11
of Title 40, Public Buildings, Property, and Works, and title III of the
Act of June 30, 1949 (41 U.S.C. 251 et seq.)], and in order to (1)
promote and ensure open competition on Federal and federally funded or
assisted construction projects; (2) maintain Government neutrality
towards Government contractors' labor relations on Federal and federally
funded or assisted construction projects; (3) reduce construction costs
to the Federal Government and to the taxpayers; (4) expand job
opportunities, especially for small and disadvantaged businesses; and
(5) prevent discrimination against Government contractors or their
employees based upon labor affiliation or lack thereof; thereby
promoting the economical, nondiscriminatory, and efficient
administration and completion of Federal and federally funded or
assisted construction projects, it is hereby ordered that:
Section 1. To the extent permitted by law, any executive agency
awarding any construction contract after the date of this order, or
obligating funds pursuant to such a contract, shall ensure that neither
the awarding Government authority nor any construction manager acting on
behalf of the Government shall, in its bid specifications, project
agreements, or other controlling documents:
(a) Require or prohibit bidders, offerors, contractors, or
subcontractors to enter into or adhere to agreements with one or more
labor organizations, on the same or other related construction
project(s); or
(b) Otherwise discriminate against bidders, offerors, contractors,
or subcontractors for becoming or refusing to become or remain
signatories or otherwise to adhere to agreements with one or more labor
organizations, on the same or other related construction project(s).
(c) Nothing in this section shall prohibit contractors or
subcontractors from voluntarily entering into agreements described in
subsection (a).
Sec. 2. Contracts awarded before the date of this order, and
subcontracts awarded pursuant to such contracts, whenever awarded, shall
not be governed by this order.
Sec. 3. To the extent permitted by law, any executive agency issuing
grants, providing financial assistance, or entering into cooperative
agreements for construction projects, shall ensure that neither the bid
specifications, project agreements, nor other controlling documents for
construction contracts awarded after the date of this order by
recipients of grants or financial assistance or by parties to
cooperative agreements, nor those of any construction manager acting on
their behalf, shall contain any of the requirements or prohibitions set
forth in section 1(a) or (b) of this order.
Sec. 4. In the event that an awarding authority, a recipient of
grants or financial assistance, a party to a cooperative agreement, or a
construction manager acting on behalf of the foregoing, performs in a
manner contrary to the provisions of sections 1 or 3 of this order, the
executive agency awarding the contract, grant, or assistance shall take
such action, consistent with law and regulation, as the agency
determines may be appropriate.
Sec. 5. (a) The head of an executive agency may exempt a particular
project, contract, subcontract, grant, or cooperative agreement from the
requirements of any or all of the provisions of sections 1 and 3 of this
order, if the agency head finds that special circumstances require an
exemption in order to avert an imminent threat to public health or
safety or to serve the national security.
(b) A finding of ``special circumstances'' under section 5(a) may
not be based on the possibility or presence of a labor dispute
concerning the use of contractors or subcontractors who are
nonsignatories to, or otherwise do not adhere to, agreements with one or
more labor organizations, or concerning employees on the project who are
not members of or affiliated with a labor organization.
(c) The head of an executive agency, upon application of an awarding
authority, a recipient of grants or financial assistance, a party to a
cooperative agreement, or a construction manager acting on behalf of the
foregoing, may exempt a particular project from the requirements of any
or all of the provisions of sections 1 and 3 of this order, if the
agency head finds: (i) that the awarding authority, recipient of grants
or financial assistance, party to a cooperative agreement, or
construction manager acting on behalf of the foregoing had issued or was
a party to, as of the date of this order, bid specifications, project
agreements, agreements with one or more labor organizations, or other
controlling documents with respect to that particular project, which
contained any of the requirements or prohibitions set forth in sections
1(a) or (b) of this order; and (ii) that one or more construction
contracts subject to such requirements or prohibitions had been awarded
as of the date of this order.
Sec. 6. (a) The term ``construction contract'' as used in this order
means any contract for the construction, rehabilitation, alteration,
conversion, extension, or repair of buildings, highways, or other
improvements to real property.
(b) The term ``executive agency'' as used in this order shall have
the same meaning it has in 5 U.S.C. 105, excluding the General
Accounting Office.
(c) The term ``labor organization'' as used in this order shall have
the same meaning it has in 42 U.S.C. 2000e(d).
Sec. 7. With respect to Federal contracts, within 60 days of the
issuance of this order, the Federal Acquisition Regulatory Council shall
take whatever action is required to amend the Federal Acquisition
Regulation in order to implement the provisions of this order.
Sec. 8. As it relates to project agreements, Executive Order 12836
of February 1, 1993, which, among other things, revoked Executive Order
12818 of October 23, 1992, is revoked.
Sec. 9. The Presidential Memorandum of June 5, 1997, entitled ``Use
of Project Labor Agreements for Federal Construction Projects'' (the
``Memorandum''), is also revoked.
Sec. 10. The heads of executive departments and agencies shall
revoke expeditiously any orders, rules, regulations, guidelines, or
policies implementing or enforcing the Memorandum or Executive Order
12836 of February 1, 1993, as it relates to project agreements, to the
extent consistent with law.
Sec. 11. This order is intended only to improve the internal
management of the executive branch and is not intended to, nor does it,
create any right to administrative or judicial review, or any right,
whether substantive or procedural, enforceable by any party against the
United States, its agencies or instrumentalities, its officers or
employees, or any other person.
George W. Bush.
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
