§ 425. — Contract clauses and certifications.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC425]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 7--OFFICE OF FEDERAL PROCUREMENT POLICY
Sec. 425. Contract clauses and certifications
(a) Nonstandard contract clauses
The Federal Acquisition Regulatory Council shall promulgate
regulations to discourage the use of a nonstandard contract clause on a
repetitive basis. The regulations shall include provisions that--
(1) clearly define what types of contract clauses are to be
treated as nonstandard clauses; and
(2) require prior approval for the use of a nonstandard clause
on a repetitive basis by an official at a level of responsibility
above the contracting officer.
(b) Construction of certification requirements
A provision of law may not be construed as requiring a certification
by a contractor or offeror in a procurement made or to be made by the
Federal Government unless that provision of law specifically provides
that such a certification shall be required.
(c) Prohibition on certification requirements
(1) A requirement for a certification by a contractor or offeror may
not be included in the Federal Acquisition Regulation unless--
(A) the certification requirement is specifically imposed by
statute; or
(B) written justification for such certification requirement is
provided to the Administrator for Federal Procurement Policy by the
Federal Acquisition Regulatory Council, and the Administrator
approves in writing the inclusion of such certification requirement.
(2)(A) A requirement for a certification by a contractor or offeror
may not be included in a procurement regulation of an executive agency
unless--
(i) the certification requirement is specifically imposed by
statute; or
(ii) written justification for such certification requirement is
provided to the head of the executive agency by the senior
procurement executive of the agency, and the head of the executive
agency approves in writing the inclusion of such certification
requirement.
(B) For purposes of subparagraph (A), the term ``head of the
executive agency'' with respect to a military department means the
Secretary of Defense.
(Pub. L. 93-400, Sec. 29, as added Pub. L. 103-355, title I, Sec. 1093,
Oct. 13, 1994, 108 Stat. 3273; amended Pub. L. 104-106, div. D, title
XLIII, Sec. 4301(b)(2)(A), (c), Feb. 10, 1996, 110 Stat. 657, 658.)
Amendments
1996--Pub. L. 104-106 substituted ``Contract clauses and
certifications'' for ``Nonstandard contract clauses'' in section
catchline, designated existing provisions as subsec. (a) and inserted
heading, and added subsecs. (b) and (c).
Effective Date of 1996 Amendment
For effective date and applicability of amendment by Pub. L. 104-
106, see section 4401 of Pub. L. 104-106, set out as a note under
section 251 of this title.
Effective Date
For effective date and applicability of section, see section 10001
of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note
under section 251 of this title.
Current Certification Requirements
Section 4301(b)(1) of Pub. L. 104-106 provided that:
``(A) Not later than 210 days after the date of the enactment of
this Act [Feb. 10, 1996], the Administrator for Federal Procurement
Policy shall issue for public comment a proposal to amend the Federal
Acquisition Regulation to remove from the Federal Acquisition Regulation
certification requirements for contractors and offerors that are not
specifically imposed by statute. The Administrator may omit such a
certification requirement from the proposal only if--
``(i) the Federal Acquisition Regulatory Council provides the
Administrator with a written justification for the requirement and a
determination that there is no less burdensome means for
administering and enforcing the particular regulation that contains
the certification requirement; and
``(ii) the Administrator approves in writing the retention of
the certification requirement.
``(B)(i) Not later than 210 days after the date of the enactment of
this Act, the head of each executive agency that has agency procurement
regulations containing one or more certification requirements for
contractors and offerors that are not specifically imposed by statute
shall issue for public comment a proposal to amend the regulations to
remove the certification requirements. The head of the executive agency
may omit such a certification requirement from the proposal only if--
``(I) the senior procurement executive for the executive agency
provides the head of the executive agency with a written
justification for the requirement and a determination that there is
no less burdensome means for administering and enforcing the
particular regulation that contains the certification requirement;
and
``(II) the head of the executive agency approves in writing the
retention of such certification requirement.
``(ii) For purposes of clause (i), the term `head of the executive
agency' with respect to a military department means the Secretary of
Defense.''
