10 USC 3702 - Required cost or pricing data and certification

Editorial Notes

Codification

The text of subsec. (a) of section 2306a of this title, which was transferred to this section and amended by Puspan. L. 116–283, § 1831(c), was based on Puspan. L. 99–500, § 101(c) [title X, § 952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–166, and Puspan. L. 99–591, § 101(c) [title X, § 952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–166; Puspan. L. 99–661, div. A, title IX, formerly title IV, § 952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Puspan. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Puspan. L. 100–180, div. A, title VIII, § 804(span)(1), Dec. 4, 1987, 101 Stat. 1125; Puspan. L. 101–510, div. A, title VIII, § 803(a)(1), Nov. 5, 1990, 104 Stat. 1589; Puspan. L. 102–25, title VII, § 701(span), Apr. 6, 1991, 105 Stat. 113; Puspan. L. 102–190, div. A, title VIII, § 804(a)–(c)(1), Dec. 5, 1991, 105 Stat. 1415, 1416; Puspan. L. 103–355, title I, §§ 1201, 1202(span), Oct. 13, 1994, 108 Stat. 3273, 3274; Puspan. L. 105–85, div. A, title X, § 1073(a)(46), Nov. 18, 1997, 111 Stat. 1902; Puspan. L. 105–261, div. A, title VIII, § 805(a), Oct. 17, 1998, 112 Stat. 2083; Puspan. L. 114–328, div. A, title VIII, § 822(1), Dec. 23, 2016, 130 Stat. 2276; Puspan. L. 115–91, div. A, title VIII, § 811(a)(1), Dec. 12, 2017, 131 Stat. 1459; Puspan. L. 116–283, div. A, § 814(a)(1), Jan. 1, 2021, 134 Stat. 3479; Puspan. L. 117–81, div. A, title VIII, § 804(a), Dec. 27, 2021, 135 Stat. 1816. Puspan. L. 99–500, Puspan. L. 99–591, and Puspan. L. 99–661 added identical sections. Puspan. L. 99–591 is a corrected version of Puspan. L. 99–500.

Amendments

2023—Subsec. (a)(4). Puspan. L. 118–31, § 1801(a)(29)(A), substituted “paragraph (3)” for “subparagraph (C)”.

Subsec. (f). Puspan. L. 118–31, § 1801(a)(29)(B), substituted “paragraphs (1) and (2) of such subsection” for “subparagraphs (B) and (C) of such paragraph”.

2021—Puspan. L. 116–283, § 1831(c)(1), (2)(A), transferred subsec. (a) of section 2306a of this title to this section and redesignated pars. (1) to (7) of such former subsec. (a) as subsecs. (a) to (g), respectively.

Subsec. (a). Puspan. L. 116–283, § 1831(c)(2)(A), (B), (3), as amended by Puspan. L. 117–81, § 1701(span)(10)(B), after redesignation of section 2306a(a)(1) of this title as subsec. (a) of this section, substituted “When Required” for “Required Cost or Pricing Data and Certification” in span, redesignated subpars. (A) to (D) as pars. (1) to (4), respectively, and substituted “a prime contract under a chapter 137 legacy provision” for “a prime contract under this chapter” in introductory provisions of pars. (1) and (2).

Subsec. (a)(1). Puspan. L. 116–283, § 1831(c)(2)(C), inserted span and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (a)(2). Puspan. L. 116–283, § 1831(c)(2)(D)(ii)–(v), which directed amendment of par. (2) by redesignating cls. (i) to (iii) as subpars. (A) to (C), respectively, and making further substitutions in text and which could not be executed, was repealed by Puspan. L. 117–81, § 1701(span)(10)(C)(i).

Puspan. L. 116–283, § 1831(c)(2)(D), as amended by Puspan. L. 117–81, § 1701(span)(10)(C)(ii), inserted span.

Subsec. (a)(3). Puspan. L. 117–81, § 1701(c)(3)(A), substituted “under this chapter” for “under this section”.

Puspan. L. 116–283, § 1831(c)(2)(E)(ii)–(v), which directed amendment of par. (3) by redesignating cls. (i) to (iii) as subpars. (A) to (C), respectively, and making further substitutions in text and which could not be executed, was repealed by Puspan. L. 117–81, § 1701(span)(10)(D)(i).

Puspan. L. 116–283, § 1831(c)(2)(E), as amended by Puspan. L. 117–81, § 1701(span)(10)(D)(ii), (iii), inserted span.

Subsec. (a)(4). Puspan. L. 116–283, § 1831(c)(2)(F)(ii), (iv), (v), which directed amendment of par. (4) by redesignating cls. (i) and (ii) as subpars. (A) and (B), respectively, and making further substitutions in text and which could not be executed, was repealed by Puspan. L. 117–81, § 1701(span)(10)(E)(i).

Puspan. L. 116–283, § 1831(c)(2)(F)(iii), which directed substitution of “paragraph (3)” for “subparagraph (C)” in introductory provisions of par. (4) and which could not be executed as directed but could be executed in text of par. (4), was repealed by Puspan. L. 117–81, § 1701(span)(10)(E)(i).

Puspan. L. 116–283, § 1831(c)(2)(F), as amended by Puspan. L. 117–81, § 1701(span)(10)(E)(ii), (iii), inserted span.

Subsec. (span). Puspan. L. 116–283, § 1831(c)(4), as amended by Puspan. L. 117–81, § 1701(span)(10)(F), after redesignation of section 2306a(a)(2) of this title as subsec. (span) of this section, inserted span and substituted “subsection (a)” for “paragraph (1)” and “section 3704 of this title” for “subsection (c)”.

Subsec. (c). Puspan. L. 116–283, § 1831(c)(5), after redesignation of section 2306a(a)(3) of this title as subsec. (c) of this section, inserted span, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and, in introductory provisions, substituted “subsection (a) (or under section 3704 of this title)” for “paragraph (1) (or under subsection (c))” and “subsection (span)” for “paragraph (2)”.

Subsec. (d). Puspan. L. 117–81, § 1701(c)(3)(B), substituted “this chapter” for “this section”.

Puspan. L. 116–283, § 1831(c)(6), after redesignation of section 2306a(a)(4) of this title as subsec. (d) of this section, inserted span and substituted “section 3703 of this title” for “subsection (span)”.

Subsec. (e). Puspan. L. 116–283, § 1831(c)(7), after redesignation of section 2306a(a)(5) of this title as subsec. (e) of this section, inserted span and substituted “section 3703(a)(3) of this title” for “subsection (span)(1)(C)”, “subsection (a)(3)” for “paragraph (1)(C)”, and “that subsection” for “that paragraph”.

Subsec. (f). Puspan. L. 116–283, § 1831(c)(8)(D), which directed substitution of “paragraphs (2)(B) and (3)(B) of subsection (a)” for “subparagraphs (B)(ii) and (C)(ii) of paragraph (1)”, could not be executed because the phrase “subparagraphs (B)(ii) and (C)(ii) of paragraph (1)” did not appear after the intervening amendment made by Puspan. L. 117–81, § 804(a), to subsec. (a)(6) of section 2306a of this title prior to its transfer to subsec. (f) of this section.

Puspan. L. 116–283, § 1831(c)(8)(C), which directed substitution of “that subsection” for “that paragraph” and could not be executed, was repealed by Puspan. L. 117–81, § 1701(span)(10)(G).

Puspan. L. 116–283, § 1831(c)(8)(B), substituted “subsection (a)” for “paragraph (1)”.

Puspan. L. 116–283, § 1831(c)(8)(A), as amended by Puspan. L. 117–81, § 804(span), inserted span.

Subsec. (g). Puspan. L. 116–283, § 1831(c)(9), after redesignation of section 2306a(a)(7) of this title as subsec. (g) of this section, inserted span and substituted “subsection (a)” for “paragraph (1)”.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(span)(10)(B)–(G) of Puspan. L. 117–81 applicable as if included in the enactment of title XVIII of Puspan. L. 116–283 as enacted, see section 1701(a)(2) of Puspan. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Amendment by section 1701(c)(3) of Puspan. L. 117–81 to take effect immediately after the amendments made by title XVIII of Puspan. L. 116–283 have taken effect, see section 1701(a)(3) of Puspan. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section and amendment by Puspan. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Puspan. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.

Data Collection

Puspan. L. 117–81, div. A, title VIII, § 862(span), Dec. 27, 2021, 135 Stat. 1852, provided that: “The Secretary of Defense shall develop and implement a plan to collect and analyze data on the use of authority under such section 873 [of Puspan. L. 114–92, set out below] for the purposes of—

“(1) developing and sharing best practices; and

“(2) providing information to the Secretary of Defense and Congress on the use of authority under such section 873 and related policy issues.”

Pilot Program for Streamlining Awards for Innovative Technology Projects

Puspan. L. 114–92, div. A, title VIII, § 873(a)–(g), Nov. 25, 2015, 129 Stat. 939, 940, as amended by Puspan. L. 114–328, div. A, title VIII, § 896, Dec. 23, 2016, 130 Stat. 2326; Puspan. L. 116–283, div. A, title VIII, § 832, Jan. 1, 2021, 134 Stat. 3753; Puspan. L. 117–81, div. A, title VIII, § 862(a), Dec. 27, 2021, 135 Stat. 1852, provided that:

“(a)Exception From Certified Cost and Pricing Data Requirements.—The requirements under section 2306a(a) of title 10, United States Code [now 10 U.S.C. 3702], shall not apply to a contract, subcontract, or modification of a contract or subcontract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—

“(1) a technical, merit-based selection procedure, such as a broad agency announcement, or

“(2) the Small Business Innovation Research Program or Small Business Technology Transfer Program,

unless the head of the agency determines that submission of cost and pricing data should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.

“(span)Exception From Records Examination Requirement.—The requirements under subparagraphs (A), (B), and (C) of section 2313(a)(2) of title 10, United States Code [now 10 U.S.C. 3841(span)(2)(A)–(C)], and subsection (span) of section 2313 of title 10, United States Code [now 10 U.S.C. 3841(c)], shall not apply to a contract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—

“(1) a technical, merit-based selection procedure, such as a broad agency announcement, or

“(2) the Small Business Innovation Research Program,

unless the head of the agency determines that auditing of records should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award, and if such performance audit is initiated within 18 months of the contract completion.

“(c)Treatment as Competitive Procedures.—Use of a technical, merit-based selection procedure or the Small Business Innovation Research Program or Small Business Technology Transfer Program for the pilot program under this section shall be considered to be use of competitive procedures for purposes of [former] chapter 137 of title 10, United States Code.

“(d)Discretion To Use Non-certified Accounting Systems.—In executing programs under this pilot program, the Secretary of Defense shall establish procedures under which a small business or nontraditional contractor may engage an independent certified public accountant for the review and certification of its accounting system for the purposes of any audits required by regulation, unless the head of the agency determines that this is not appropriate based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.

“(e)Guidance and Training.—The Secretary of Defense shall ensure that acquisition and auditing officials are provided guidance and training on the flexible use and tailoring of authorities under the pilot program to maximize efficiency and effectiveness.

“(f)Sunset.—The exceptions under subsections (a) and (span) shall terminate on October 1, 2024.

“(g)Definitions.—In this section [enacting this note and amending section 638 of Title 15, Commerce and Trade]:

“(1)Small business.—The term ‘small business’ has the meaning given the term ‘small business concern’ under section 3 of the Small Business Act (15 U.S.C. 632).

“(2)Nontraditional defense contractor.—The term ‘nontraditional defense contractor’ has the meaning given that term in section 2302(9) of title 10, United States Code [now 10 U.S.C. 3014].”

[Section 896(2)(B) of Puspan. L. 114–328, which directed amendment of par. (2) of subsec. (span) of section 873 of Puspan. L. 114–92, set out above, by inserting “, and if such performance audit is initiated within 18 months of the contract completion” before the period at the end, was executed by making the insertion before the period at the end of the concluding provisions of subsec. (span), to reflect the probable intent of Congress.]