§ 252. — Purchases and contracts for property.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC252]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 252. Purchases and contracts for property
(a) Applicability of subchapter; delegation of authority
Executive agencies shall make purchases and contracts for property
and services in accordance with the provisions of this subchapter and
implementing regulations of the Administrator; but this subchapter does
not apply--
(1) to the Department of Defense, the Coast Guard, and the
National Aeronautics and Space Administration; or
(2) when this subchapter is made inapplicable pursuant to
section 113(e) of title 40 or any other law, but when this
subchapter is made inapplicable by any such provision of law,
sections 5 and 8 of this title shall be applicable in the absence of
authority conferred by statute to procure without advertising or
without regard to said section 5 of this title.
(b) Small business concerns; share of business
It is the declared policy of the Congress that a fair proportion of
the total purchases and contracts for property and services for the
Government shall be placed with small business concerns.
(c) Authorization of erection, repair, or furnishing of public buildings
or improvements; contracts for construction or repair of
buildings, roads, sidewalks, sewers, mains, etc.; Federal
Highway Lands Program
(1) This subchapter does not (A) authorize the erection, repair, or
furnishing of any public building or public improvement, but such
authorization shall be required in the same manner as heretofore, or (B)
permit any contract for the construction or repair of buildings, roads,
sidewalks, sewers, mains, or similar items using procedures other than
sealed-bid procedures under section 253(a)(2)(A) of this title, if the
conditions set forth in section 253(a)(2)(A) of this title apply or the
contract is to be performed outside the United States.
(2) Section 253(a)(2)(A) of this title does not require the use of
sealed-bid procedures in cases in which section 204(e) of title 23
applies.
(June 30, 1949, ch. 288, title III, Sec. 302, 63 Stat. 393; July 12,
1952, ch. 703, Sec. 1(m), 66 Stat. 594; Pub. L. 85-800, Secs. 1-3, Aug.
28, 1958, 72 Stat. 966; Pub. L. 89-343, Secs. 1, 2, Nov. 8, 1965, 79
Stat. 1303; Pub. L. 89-348, Sec. 1(2), Nov. 8, 1965, 79 Stat. 1310; Pub.
L. 90-268, Sec. 4, Mar. 16, 1968, 82 Stat. 50; Pub. L. 93-356, Sec. 3,
July 25, 1974, 88 Stat. 390; Pub. L. 98-191, Sec. 9(a)(1), Dec. 1, 1983,
97 Stat. 1331; Pub. L. 98-369, div. B, title VII, Sec. 2714(a)(1), July
18, 1984, 98 Stat. 1184.)
Codification
``Section 113(e) of title 40'' substituted in subsec. (a)(2) for
``section 602(d) of this Act'', meaning section 602(d) of the Federal
Property and Administrative Services Act of 1949, on authority of Pub.
L. 107-217, Sec. 5(c), Aug. 21, 2002, 116 Stat. 1303, the first section
of which enacted Title 40, Public Buildings, Property, and Works.
Amendments
1984--Subsec. (b). Pub. L. 98-369, Sec. 2714(a)(1)(A), struck out
provisions that whenever it was proposed to make a contract or purchase
in excess of $10,000 by negotiation and without advertising, pursuant to
the authority of subsec. (c)(7) of this section, suitable advance
publicity, as determined by the agency head with due regard to the type
of property involved and other relevant considerations, had to be given
for a period of at least fifteen days, wherever practicable, as
determined by the agency head.
Subsec. (c)(1). Pub. L. 98-369, Sec. 2714(a)(1)(B), redesignated
subsec. (e) as (c)(1), substituted reference to this subchapter for
reference to this section in provisions preceding subpar. (A), in
subpar. (B), substituted provisions relating to contracts using
procedures other than sealed-bid procedures under section 253(a)(2)(A)
of this title for provisions relating to contracts negotiated without
advertising as required by section 253 of this title. Former subsec.
(c), which related to conditions for negotiated purchases and contracts
for property, was struck out.
Subsec. (c)(2). Pub. L. 98-369, Sec. 2714(a)(1)(B), added par. (2).
Subsec. (d). Pub. L. 98-369, Sec. 2714(a)(1)(B), struck out subsec.
(d) which related to bids in violation of the antitrust laws.
Subsec. (e). Pub. L. 98-369, Sec. 2714(a)(1)(B), redesignated
subsec. (e) as (c)(1).
Subsec. (f). Pub. L. 98-369, Sec. 2714(a)(1)(B), struck out subsec.
(f) which related to specification of container size in contracts for
the carriage of Government property in other than Government-owned cargo
containers.
1983--Subsec. (c)(3). Pub. L. 98-191 substituted ``$25,000'' for
``$10,000''.
1974--Subsec. (c)(3). Pub. L. 93-356 substituted ``$10,000'' for
``$2,500''.
1968--Subsec. (f). Pub. L. 90-268 added subsec. (f).
1965--Subsec. (a). Pub. L. 89-343, Sec. 1, substituted provisions
requiring executive agencies to make purchases and contracts for
property and services in accordance with the provisions of this
subchapter and implementing regulations of the Administrator, exempting
the Department of Defense, the Coast Guard, and the National Aeronautics
and Space Administration from the application of this subchapter, and
making this subchapter inapplicable when it is so made by law, for
provisions which made this subchapter applicable to purchases and
contracts for property or services made by the General Services
Administration for the use of such agency or otherwise, or by any other
executive agency (except the departments and activities specified in
section 2303(a) of Title 10) in conformity with authority to apply such
provisions delegated by the Administrator in his discretion.
Subsec. (c)(11). Pub. L. 89-348 struck out proviso which required a
semiannual report to be furnished to the Congress setting forth the name
of each contractor with whom a contract has been entered into pursuant
to this paragraph, the amount of the contract, and, with due
consideration given to the national security, a description of the work
required to be performed thereunder.
Subsec. (c)(15). Pub. L. 89-343, Sec. 2, inserted ``except that
section 254 of this title shall apply to purchases and contracts made
without advertising under this paragraph''.
1958--Subsec. (a). Pub. L. 85-800, Sec. 1, among other changes,
substituted ``or'' for ``and'' in par. (1), substituted provisions
excepting application of subchapter to departments and activities in
section 2303(a) of title 10 for provisions which excepted agencies named
in section 151(a) of this title, substituted provisions applying
subchapter to agencies in conformity with authority delegated by
Administrator in his discretion for provisions which applied chapter in
conformity with authority delegated him pursuant to this subsection, and
eliminated provisions authorizing Administrator to delegate authority
for use of two or more agencies, and other cases where delegation is
advantageous to Government in par. (2).
Subsec. (c). Pub. L. 85-800, Sec. 2, substituted in par. (3)
``$2,500'' for ``$1,000'', struck out proviso barring agencies other
than General Services Administration from making purchases in excess of
$500 except under authority to procure for two or more agencies, added
par. (9), and renumbered former pars. (9) to (14) as pars. (10) to (15).
Subsec. (e). Pub. L. 85-800, Sec. 3, substituted ``(10) to (12), or
(14)'' for ``(9) to (11), or (13)''.
1952--Subsecs. (a) to (c). Act July 12, 1952, substituted
``property'' for ``supplies'' wherever appearing.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-369 applicable with respect to any
solicitation for bids or proposals issued after Mar. 31, 1985, see
section 2751 of Pub. L. 98-369, set out as a note under section 251 of
this title.
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.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the
Coast Guard, including the authorities and functions of the Secretary of
Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections 468(b), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department of
Homeland Security Reorganization Plan of November 25, 2002, as modified,
set out as a note under section 542 of Title 6.
Emergency Relief for Small Business Concerns With Government Contracts
Pub. L. 94-190, Dec. 31, 1975, 89 Stat. 1095, provided:
``short title
``Section 1. This Act may be cited as the `Small Business Emergency
Relief Act'.
``policy
``Sec. 2. It is the policy of Congress to provide relief to small
business concerns which have fixed-price Government contracts in cases
where such concerns have suffered or can be expected to suffer serious
financial loss because of significant and unavoidable difficulties
during performance because of the energy crisis or rapid and unexpected
escalations of contract costs.
``definitions
``Sec. 3. As used in this Act--
``(1) the term `executive agency' means an executive department,
a military department, and an independent establishment within the
meaning of sections 101, 102, and 104(1) respectively, of title 5,
United States Code, and also a wholly owned Government corporation
within the meaning of section 101 of the Government Corporation
Control Act [section 9101(3) of Title 31, Money and Finance]; and
``(2) the term `small business concern' means any concern which
falls under the size limitations of the `Small Business
Administrator's Definitions of Small Business for Government
Procurement'.
``authority
``Sec. 4. (a) Pursuant to an application by a small business
concern, the head of any executive agency may terminate for the
convenience of the Government any fixed-price contract between that
agency and such small business concern, upon a finding that--
``(1) during the performance of the contract, the concern has
suffered or can be expected to suffer serious financial loss due to
significant unanticipated cost increases directly affecting the cost
of contract compliance; and
``(2) the conditions which have caused or are causing such cost
increases were, or are being, experienced generally by other small
business concerns in the market at the same time and are not caused
by negligence, underbidding, or other special management factors
peculiar to that small business concern.
``(b) Upon application under subsection (a) by a small business
concern to terminate a fixed-price contract between an executive agency
and such small business concern, the head of the executive agency may
modify the terms of the contract in lieu of termination for the
convenience of the Government only if he finds after review of the
application that--
``(1)(a) the agency would reprocure the supplies or services in
the event that the contract was terminated for the convenience of
the Government; and
``(b) the cost of terminating the contract for the convenience
of the Government plus the cost of reprocurement would exceed the
amount of the contract as modified; and
``(2) Any such modification shall be made in compliance with
cost comparison and compensation guidelines to be issued by the
Administrator of the Office of Federal Procurement Policy. Such cost
comparison and compensation guidelines shall be promulgated by the
Administrator not later than 10 days after enactment of this Act
[Dec. 31, 1975].
``(c) If a small business concern in performance of a fixed-price
Government contract experiences or has experienced shortages of energy,
petroleum products, or products or components manufactured or derived
therefrom or impacted thereby, and such shortages result in a delay in
the performance of a contract, the head of the agency, or his designee,
shall provide by modification to the contract for an appropriate
extension of the contract delivery date or period of performance.
``(d) A small business concern requesting relief under subsection
(a) shall support that request with the following documentation and
certification:
``(1) a brief description of the contract, indicating the date
of execution and of any amendment thereto, the items being procured,
the price and delivery schedule, and any revision thereof, and any
other special contractual provision as may be relevant to the
request;
``(2) a history of performance indicating when work under the
contract or commitment was begun, the progress made as of the date
of the application, an exact statement of the contractor's remaining
obligations, and the contractor's expectations regarding completion
thereof;
``(3) a statement of the factors which have caused the loss
under the contract;
``(4) a statement as to the course of events anticipated if the
request is denied;
``(5) a statement of payments received, payments due and
payments yet to be received or to become due, including advance and
progress payments, and amounts withheld by the Government, and
information as to other obligations of the Government, if any, which
are yet to be performed under the contract;
``(6) a statement and evidence of the contractor's original
breakdown of estimated costs, including contingency allowances and
profit;
``(7) a statement and evidence of the contractor's present
estimate of total costs under the contract if enabled to complete,
broken down between costs accrued to date of request, and runout
costs, and as between costs for which the contractor has made
payment and those for which he is indebted at the time of the
request;
``(8) a statement and evidence of the contractor's estimate of
the final price of the contract, giving effect to all escalation,
changes, extras, and other comparable factors known or contemplated
by the contractor;
``(9) a statement of any claims known or contemplated by the
contractor against the Government involving the contract in
question, other than those referred to under (8) above;
``(10) an estimate of the contractor's total profit or loss
under the contract if required to complete at the original contract
price;
``(11) an estimate of the total profits from other Government
business, and all other sources, during the period from the date of
the first contract involved to the latest estimated date of
completion of any other contracts involved;
``(12) balance sheets, certified by a certified public
accountant, as of the end of the contractor's fiscal year first
preceding the date of the first contract, as of the end of each
subsequent fiscal year, and as of the date of the request together
with income statements for annual periods subsequent to the date of
the first balance sheet; and
``(13) a list of all salaries, bonuses, and all other forms of
compensation of the principal officers or partners and of all
dividends and other withdrawals, and all payments to stockholders in
any form since the date of the first contract involved.
``delegation
``Sec. 5. The head of each executive agency shall delegate authority
conferred by this Act, to the extent practicable, to an appropriate
level that will permit the expeditious processing of applications under
this Act and to insure the uniformity of its application.
``limitations
``Sec. 6. (a) The authority prescribed in section 4(a) shall apply
only to contracts which have not been completely performed or otherwise
terminated and which were entered into during the period from August 15,
1971, through October 31, 1974.
``(b) The authority conferred by section 4(a) of this Act shall
terminate September 30, 1976.''
Non-Applicability of National Emergencies Act
The provisions of the National Emergencies Act (Pub. L. 94-412,
Sept. 14, 1976, 90 Stat. 1255) not applicable to the powers and
authorities conferred by this section and actions taken hereunder, see
section 1651 of Title 50, War and National Defense.
Executive Order No. 10936
Ex. Ord. No. 10936, Apr. 24, 1961, 26 F.R. 3555, which provided for
the reporting and investigation of identical bids in connection with the
procurement of goods or services, was revoked by Ex. Ord. No. 12430,
July 6, 1983, 48 F.R. 31371.
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
Section Referred to in Other Sections
This section is referred to in section 260 of this title; title 22
sections 2509, 4024; title 23 section 140; title 30 section 1711; title
38 section 8122; title 50 sections 1432, 1651.
