Collapse to view only § 2781. Costs not allowed under covered contracts
- § 2781. Costs not allowed under covered contracts
- § 2782. Prohibition and report on bonuses to contractors operating defense nuclear facilities
- § 2782a. Assessments of emergency preparedness of defense nuclear facilities
- § 2783. Contractor liability for injury or loss of property arising out of atomic weapons testing programs
- § 2784. Notice-and-wait requirement applicable to certain third-party financing arrangements
- § 2785. Publication of contractor performance evaluations leading to award fees
- § 2786. Enhanced procurement authority to manage supply chain risk
- § 2787. Cost-benefit analyses for competition of management and operating contracts
§ 2781. Costs not allowed under covered contracts
(a) In generalThe following costs are not allowable under a covered contract:
(1) Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities).
(2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress or a State legislature.
(3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the United States where the contractor is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of false certification).
(4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance such payments in accordance with applicable regulations of the Secretary of Energy.
(5) Costs of membership in any social, dining, or country club or organization.
(6) Costs of alcoholic beverages.
(7) Contributions or donations, regardless of the recipient.
(8) Costs of advertising designed to promote the contractor or its products.
(9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.
(10) Costs for travel by commercial aircraft or by travel by other than common carrier that is not necessary for the performance of the contract and the cost of which exceeds the amount of the standard commercial fare.
(b) Regulations; costs of information provided to Congress or State legislatures and related costs
(1) Not later than 150 days after November 8, 1985, the Secretary of Energy shall prescribe regulations to implement this section. Such regulations may establish appropriate definitions, exclusions, limitations, and qualifications. Such regulations shall be published in accordance with section 1707 of title 41.
(2) In any regulations implementing subsection (a)(2), the Secretary may not treat as not allowable (by reason of such subsection) the following costs of a contractor:
(A) Costs of providing to Congress or a State legislature, in response to a request from Congress or a State legislature, information of a factual, technical, or scientific nature, or advice of experts, with respect to topics directly related to the performance of the contract.
(B) Costs for transportation, lodging, or meals incurred for the purpose of providing such information or advice.
(c) “Covered contract” defined
(d) Effective date
(Pub. L. 107–314, div. D, title XLVIII, § 4801, formerly Pub. L. 99–145, title XV, § 1534, Nov. 8, 1985, 99 Stat. 774; Pub. L. 100–180, div. C, title I, § 3131(a), Dec. 4, 1987, 101 Stat. 1238; renumbered Pub. L. 107–314, div. D, title XLVIII, § 4801, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(k)(2), Nov. 24, 2003, 117 Stat. 1783; Pub. L. 113–66, div. C, title XXXI, § 3146(i)(1), Dec. 26, 2013, 127 Stat. 1081.)
§ 2782. Prohibition and report on bonuses to contractors operating defense nuclear facilities
(a) Prohibition
(b) Regulations
(Pub. L. 107–314, div. D, title XLVIII, § 4802, formerly Pub. L. 101–189, div. C, title XXXI, § 3151, Nov. 29, 1989, 103 Stat. 1682; renumbered Pub. L. 107–314, div. D, title XLVIII, § 4802, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(k)(3), Nov. 24, 2003, 117 Stat. 1783; Pub. L. 112–239, div. C, title XXXI, § 3131(v), Jan. 2, 2013, 126 Stat. 2184; Pub. L. 113–66, div. C, title XXXI, § 3146(a)(2)(J), Dec. 26, 2013, 127 Stat. 1073.)
§ 2782a. Assessments of emergency preparedness of defense nuclear facilities
The Secretary of Energy shall include, in each award-fee evaluation conducted under section 16.401 of title 48, Code of Federal Regulations, of a management and operating contract for a Department of Energy defense nuclear facility in 2016 or any even-numbered year thereafter, an assessment of the adequacy of the emergency preparedness of that facility, including an assessment of the seniority level of management and operating contractor employees that participate in emergency preparedness exercises at that facility.
(Pub. L. 107–314, div. D, title XLVIII, § 4802A, as added Pub. L. 114–92, div. C, title XXXI, § 3134(a), Nov. 25, 2015, 129 Stat. 1207.)
§ 2783. Contractor liability for injury or loss of property arising out of atomic weapons testing programs
(a) Short title
(b) Federal remedies applicable; exclusiveness of remedies
(1) Remedy
(2) Exclusivity
(c) Procedure
(d) Actions covered
(e) “Contractor” defined
(Pub. L. 107–314, div. D, title XLVIII, § 4803, formerly Pub. L. 101–510, div. C, title XXXI, § 3141, Nov. 5, 1990, 104 Stat. 1837; renumbered Pub. L. 107–314, div. D, title XLVIII, § 4803, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(k)(4), Nov. 24, 2003, 117 Stat. 1783; Pub. L. 113–66, div. C, title XXXI, § 3146(i)(2), Dec. 26, 2013, 127 Stat. 1081.)
§ 2784. Notice-and-wait requirement applicable to certain third-party financing arrangements
(a) Notice-and-wait requirement
(b) Covered arrangements
(1) In general
Except as provided in paragraph (2), an arrangement referred to in subsection (a) is any alternative financing arrangement, third-party financing arrangement, public-private partnership, privatization arrangement, private capital arrangement, or other financing arrangement that—
(A) is entered into in connection with a project conducted using funds authorized to be appropriated to the Department of Energy to carry out programs necessary for national security; and
(B) involves a contractor or Federal agency obtaining and charging to the Department of Energy as an allowable cost under a contract the use of office space, facilities, or other real property assets with a value of at least $5,000,000.
(2) Exception
An arrangement referred to in subsection (a) does not include an arrangement that—
(A) involves the Department of Energy or a contractor acquiring or entering into a capital lease for office space, facilities, or other real property assets; or
(B) is entered into in connection with a capital improvement project undertaken as part of an energy savings performance contract under section 8287 of title 42.
(Pub. L. 107–314, div. D, title XLVIII, § 4804, as added Pub. L. 109–364, div. C, title XXXI, § 3118, Oct. 17, 2006, 120 Stat. 2509.)
§ 2785. Publication of contractor performance evaluations leading to award fees
(a) In general
(b) Format
(Pub. L. 107–314, div. D, title XLVIII, § 4805, as added Pub. L. 112–239, div. C, title XXXI, § 3117(a)(1), Jan. 2, 2013, 126 Stat. 2173.)
§ 2786. Enhanced procurement authority to manage supply chain risk
(a) AuthoritySubject to subsection (b), the Secretary of Energy may—
(1) carry out a covered procurement action or special exclusion action; and
(2) notwithstanding any other provision of law, limit, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action or special exclusion action.
(b) RequirementsThe Secretary may exercise the authority under subsection (a) only after—
(1) obtaining a risk assessment that demonstrates that there is a significant supply chain risk to a covered system;
(2) making a determination in writing, in unclassified or classified form, that—
(A) the use of the authority under subsection (a) is necessary to protect national security by reducing supply chain risk;
(B) less restrictive measures are not reasonably available to reduce the supply chain risk; and
(C) in a case in which the Secretary plans to limit disclosure of information under subsection (a)(2), the risk to national security of the disclosure of the information outweighs the risk of not disclosing the information; and
(3) submitting to the appropriate congressional committees, not later than seven days after the date on which the Secretary makes the determination under paragraph (2), a notice of such determination, in classified or unclassified form, that includes—
(A) the information required by section 3304(e)(2)(A) of title 41;
(B) a summary of the risk assessment required under paragraph (1); and
(C) a summary of the basis for the determination, including a discussion of less restrictive measures that were considered and why such measures were not reasonably available to reduce supply chain risk.
(c) NotificationsIf the Secretary has exercised the authority under subsection (a), the Secretary shall—
(1) notify appropriate parties of the covered procurement action or special exclusion action and the basis for the action only to the extent necessary to carry out the covered procurement action or special exclusion action;
(2) notify other Federal agencies responsible for procurement that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and
(3) ensure the confidentiality of any notifications under paragraph (1) or (2).
(d) Limitation of review
(e) Delegation of authorityThe Secretary may delegate the authority under this section to—
(1) in the case of the Administration, the Administrator; and
(2) in the case of any other component of the Department of Energy, the Senior Procurement Executive of the Department.
(f) DefinitionsIn this section:
(1) Appropriate congressional committeesThe term “appropriate congressional committees” means—
(A) the congressional defense committees; and
(B) the Committee on Energy and Natural Resources of the Senate and the Committee on Energy and Commerce of the House of Representatives.
(2) Covered item of supplyThe term “covered item of supply” means an item—
(A) that is purchased for inclusion in a covered system; and
(B) the loss of integrity of which could result in a supply chain risk for a covered system.
(3) Covered procurementThe term “covered procurement” means the following:
(A) A source selection for a covered system or a covered item of supply involving either a performance specification, as described in subsection (a)(3)(B) of section 3306 of title 41, or an evaluation factor, as described in subsection (b)(1) of such section, relating to supply chain risk.
(B) The consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 4106(d)(3) of title 41, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk.
(C) Any contract action involving a contract for a covered system or a covered item of supply if the contract includes a clause establishing requirements relating to supply chain risk.
(4) Covered procurement actionThe term “covered procurement action” means, with respect to an action that occurs in the course of conducting a covered procurement, any of the following:
(A) The exclusion of a source that fails to meet qualification requirements established pursuant to section 3311 of title 41 for the purpose of reducing supply chain risk in the acquisition of covered systems.
(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
(C) The withholding of consent for a contractor to subcontract with a particular source or the direction to a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.
(5) Covered systemThe term “covered system” means the following:
(A) National security systems (as defined in section 3552(b) of title 44) and components of such systems.
(B) Nuclear weapons and components of nuclear weapons.
(C) Items associated with the design, development, production, and maintenance of nuclear weapons or components of nuclear weapons.
(D) Items associated with the surveillance of the nuclear weapon stockpile.
(E) Items associated with the design and development of nonproliferation and counterproliferation programs and systems.
(6) Special exclusion action
(7) Supply chain risk
(g) Termination
(Pub. L. 107–314, div. D, title XLVIII, § 4806, as added Pub. L. 113–66, div. C, title XXXI, § 3113(a), Dec. 26, 2013, 127 Stat. 1053; amended Pub. L. 113–291, div. C, title XXXI, § 3142(s), Dec. 19, 2014, 128 Stat. 3901; Pub. L. 115–232, div. C, title XXXI, § 3117, Aug. 13, 2018, 132 Stat. 2292; Pub. L. 116–92, div. C, title XXXI, § 3133, Dec. 20, 2019, 133 Stat. 1958; Pub. L. 116–283, div. C, title XXXI, § 3161, Jan. 1, 2021, 134 Stat. 4391; Pub. L. 117–81, div. C, title XXXI, § 3119, Dec. 27, 2021, 135 Stat. 2228.)
§ 2787. Cost-benefit analyses for competition of management and operating contracts
(a) Briefings on requests for proposals
(b) Reports after transition to new contracts
(c) Matters describedThe matters described in this subsection, with respect to a contract, are the following:
(1) A clear and complete description of the cost savings the Administrator expects to result from the competition for the contract over the life of the contract, including associated analyses, assumptions, and information sources used to determine such expected cost savings.
(2) A description of any key limitations or uncertainties that could affect such costs savings, including costs savings that are anticipated but not fully known.
(3) The costs of the competition for the contract, including the immediate costs of conducting the competition, the costs of the transition to the contract from the previous contract, and any increased costs over the life of the contract.
(4) A description of any disruptions or delays in mission activities or deliverables resulting from the competition for the contract.
(5) A clear and complete description of the benefits expected by the Administrator with respect to mission performance or operations resulting from the competition.
(6) How the competition for the contract complied with the Federal Acquisition Regulation regarding federally funded research and development centers, if applicable.
(7) The factors considered and processes used by the Administrator to determine—
(A) whether to compete or extend the previous contract; and
(B) which activities at the facility should be covered under the contract rather than under a different contract.
(8) With respect to the matters included under paragraphs (1) through (7), a detailed description of the analyses conducted by the Administrator to reach the conclusions presented in the report, including any assumptions, limitations, and uncertainties relating to such conclusions.
(9) Any other matters the Administrator considers appropriate.
(d) Information qualityEach briefing required by subsection (a) and report required by subsection (b) shall be prepared in accordance with—
(1) the information quality guidelines of the Department of Energy that are relevant to the clear and complete presentation of the matters described in subsection (c); and
(2) best practices of the Government Accountability Office and relevant industries for cost estimating, if appropriate.
(e) Review of reports by Comptroller General of the United States
(1) Initial review
(2) Comprehensive review
(A) Determination
(B) Submission
(C) ElementsA comprehensive review conducted under subparagraph (A) of a report required by subsection (b) shall include an assessment, based on the most current information available, of the following:
(i) The actual cost savings achieved compared to cost savings estimated under subsection (c)(1), and any increased costs incurred under the contract that were unexpected or uncertain at the time the contract was awarded.
(ii) Any disruptions or delays in mission activities or deliverables resulting from the competition for the contract compared to the disruptions and delays estimated under subsection (c)(4).
(iii) Whether expected benefits of the competition with respect to mission performance or operations have been achieved.
(iv) Such other matters as the Comptroller General considers appropriate.
(f) Applicability
(1) In general
(2) Naval reactors
(Pub. L. 107–314, div. D, title XLVIII, § 4807, as added Pub. L. 115–232, div. C, title XXXI, § 3131(a), Aug. 13, 2018, 132 Stat. 2298; amended Pub. L. 118–31, div. C, title XXXI, § 3119, Dec. 22, 2023, 137 Stat. 791.)