Attachment A - 41 USC secs. 7101-7109 (2012)

Page 131

TITLE 41—PUBLIC CONTRACTS

once every 2 years during the term of the contract, covering each class of service employee.
(e) EXCLUSION OF FRINGE BENEFIT PAYMENTS IN
DETERMINING OVERTIME PAY.—In determining
any overtime pay to which a service employee is
entitled under Federal law, the regular or basic
hourly rate of pay of the service employee does
not include any fringe benefit payments computed under this chapter which are excluded
from the definition of ‘‘regular rate’’ under section 7(e) of the Fair Labor Standards Act of 1938
(29 U.S.C. 207(e)).
(f) TIMELINESS OF WAGE AND FRINGE BENEFIT
DETERMINATIONS.—It is the intent of Congress
that determinations of minimum wages and
fringe benefits under section 6703(1) and (2) of
this title should be made as soon as administratively feasible for all contracts subject to this
chapter. In any event, the Secretary shall at
least make the determinations for contracts
under which more than 5 service employees are
to be employed.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3815.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

6707(a)–(d) ..

41:353.

6707(e) ........

41:355.

6707(f) ........

41:358.

Source (Statutes at Large)
Pub. L. 89–286, § 4, Oct. 22,
1965, 79 Stat. 1035; Pub. L.
92–473, § 3, Oct. 9, 1972, 86
Stat. 789.
Pub. L. 89–286, § 6, Oct. 22,
1965, 79 Stat. 1035.
Pub. L. 89–286, § 10, as added
Pub. L. 92–473, § 5, Oct. 9,
1972, 86 Stat. 790; Pub. L.
94–273, § 29, Apr. 21, 1976, 90
Stat. 380.

In subsection (e), the words ‘‘the definition of ‘regular rate’ under section 7(e) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 207(e))’’ are substituted for ‘‘the
regular rate under the Fair Labor Standards Act by
provisions of section 7(d) thereof ’’ for clarity, to correct the reference to ‘‘the Fair Labor Standards Act’’
in accordance with section 1 of the Fair Labor Standards Act of 1938 (29:201), which provided the short title
for the Act, and to correct the reference to ‘‘section
7(d) thereof ’’ in accordance with section 204(d)(1) of the
Fair Labor Standards Amendments of 1966 (Public Law
89–601, 80 Stat. 836), which amended the Fair Labor
Standards Act of 1938 by redesignating section 7(d) as
7(e).
In subsection (f), the words ‘‘paragraphs (1) and (2) of
section 2’’, which appear in section 10 of the Service
Contract Act of 1965, as added by section 5 of Public
Law 92–473 (86 Stat. 790), are treated as a reference to
paragraphs (1) and (2) of section 2(a) of the Service Contract Act of 1965 to reflect the probable intent of Congress. The words ‘‘which are entered into during the applicable fiscal year’’, 41:358(1)–(4), and the words ‘‘On
and after July 1, 1976’’ are omitted as obsolete.

Subtitle III—Contract Disputes
Chapter

71.

Sec.

Contract Disputes ...............................

7101

CHAPTER 71—CONTRACT DISPUTES
Sec.

7101.
7102.
7103.
7104.
7105.
7106.

Definitions.
Applicability of chapter.
Decision by contracting officer.
Contractor’s right of appeal from decision by
contracting officer.
Agency boards.
Agency board procedures for accelerated and
small claims.

§ 7101

Sec.

7107.
7108.
7109.

Judicial review of agency board decisions.
Payment of claims.
Interest.

§ 7101. Definitions
In this chapter:
(1) ADMINISTRATOR.—The term ‘‘Administrator’’ means the Administrator for Federal
Procurement Policy appointed pursuant to
section 1102 of this title.
(2) AGENCY BOARD OR AGENCY BOARD OF CONTRACT APPEALS.—The term ‘‘agency board’’ or
‘‘agency board of contract appeals’’ means—
(A) the Armed Services Board;
(B) the Civilian Board;
(C) the board of contract appeals of the
Tennessee Valley Authority; or
(D) the Postal Service Board established
under section 7105(d)(1) of this title.
(3) AGENCY HEAD.—The term ‘‘agency head’’
means the head and any assistant head of an
executive agency. The term may include the
chief official of a principal division of an executive agency if the head of the executive agency so designates that chief official.
(4) ARMED SERVICES BOARD.—The term
‘‘Armed Services Board’’ means the Armed
Services Board of Contract Appeals established under section 7105(a)(1) of this title.
(5) CIVILIAN BOARD.—The term ‘‘Civilian
Board’’ means the Civilian Board of Contract
Appeals established under section 7105(b)(1) of
this title.
(6) CONTRACTING OFFICER.—The term ‘‘contracting officer’’—
(A) means an individual who, by appointment in accordance with applicable regulations, has the authority to make and administer contracts and to make determinations
and findings with respect to contracts; and
(B) includes an authorized representative
of the contracting officer, acting within the
limits of the representative’s authority.
(7) CONTRACTOR.—The term ‘‘contractor’’
means a party to a Federal Government contract other than the Federal Government.
(8) EXECUTIVE AGENCY.—The term ‘‘executive
agency’’ means—
(A) an executive department as defined in
section 101 of title 5;
(B) a military department as defined in
section 102 of title 5;
(C) an independent establishment as defined in section 104 of title 5, except that the
term does not include the Government Accountability Office; and
(D) a wholly owned Government corporation as defined in section 9101(3) of title 31.
(9) MISREPRESENTATION OF FACT.—The term
‘‘misrepresentation of fact’’ means a false
statement of substantive fact, or conduct that
leads to a belief of a substantive fact material
to proper understanding of the matter in hand,
made with intent to deceive or mislead.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3816.)

§ 7102

TITLE 41—PUBLIC CONTRACTS
HISTORICAL AND REVISION NOTES

Revised
Section
7101 ............

Source (U.S. Code)
41:601.

Revised
Section

Pub. L. 95–563, § 2, Nov. 1,
1978, 92 Stat. 2383; Pub. L.
104–106, div. D, title XLIII,
§ 4322(b)(5), Feb. 10, 1996,
110 Stat. 677; Pub. L.
109–163, div. A, title VIII,
§ 847(d)(1), Jan. 6, 2006, 119
Stat. 3393.

7102(d) ........

§ 7102. Applicability of chapter
(a) EXECUTIVE AGENCY CONTRACTS.—Unless
otherwise specifically provided in this chapter,
this chapter applies to any express or implied
contract (including those of the nonappropriated
fund activities described in sections 1346 and
1491 of title 28) made by an executive agency
for—
(1) the procurement of property, other than
real property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration, repair, or maintenance of real property;
or
(4) the disposal of personal property.
(b) TENNESSEE VALLEY AUTHORITY CONTRACTS.—
(1) IN GENERAL.—With respect to contracts of
the Tennessee Valley Authority, this chapter
applies only to contracts containing a clause
that requires contract disputes to be resolved
through an agency administrative process.
(2) EXCLUSION.—Notwithstanding any other
provision of this chapter, this chapter does not
apply to a contract of the Tennessee Valley
Authority for the sale of fertilizer or electric
power or related to the conduct or operation of
the electric power system.
(c) FOREIGN GOVERNMENT OR INTERNATIONAL
ORGANIZATION CONTRACTS.—If an agency head
determines that applying this chapter would not
be in the public interest, this chapter does not
apply to a contract with a foreign government,
an agency of a foreign government, an international organization, or a subsidiary body of an
international organization.
(d) MARITIME CONTRACTS.—Appeals under section 7107(a) of this title and actions brought
under sections 7104(b) and 7107(b) to (f) of this
title, arising out of maritime contracts, are governed by chapter 309 or 311 of title 46, as applicable, to the extent that those chapters are not inconsistent with this chapter.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3817.)
HISTORICAL AND REVISION NOTES
Revised
Section
7102(a)–(c) ..

Source (U.S. Code)
41:602.

HISTORICAL AND REVISION NOTES—CONTINUED

Source (Statutes at Large)

In paragraph (8)(C), the words ‘‘Government Accountability Office’’ are substituted for ‘‘General Accounting
Office’’ because of section 8(b) of the GAO Human Capital Reform Act of 2004 (Public Law 108–271, 118 Stat.
814, 31 U.S.C. 702 note).
In paragraph (8)(D), the words ‘‘section 9101(3) of title
31’’ are substituted for ‘‘section 846 of title 31’’ because
of section 4(b) of Public Law 97–258 (31 U.S.C. note prec.
101).

Source (Statutes at Large)
Pub. L. 95–563, §§ 3, 4, Nov. 1,
1978, 92 Stat. 2383.

Page 132

Source (U.S. Code)

Source (Statutes at Large)

41:603.

In subsection (c), the words ‘‘an agency head’’ are
substituted for ‘‘the head of the agency’’ for consistency with the defined term ‘‘agency head’’ in section
7101 of the revised title.
In subsection (d), the words ‘‘chapter 309 or 311 of
title 46’’ are substituted for ‘‘the Act of March 9, 1920,
as amended (41 Stat. 525, as amended; 46 U.S.C. 741–752)
or the Act of March 3, 1925, as amended (43 Stat. 1112,
as amended; 46 U.S.C. 781–790)’’ in section 4 of the Contract Disputes Act of 1978 (Public Law 95–563, 92 Stat.
2384) because of section 18(c) of Public Law 109–304 (46
U.S.C. note prec. 101).

§ 7103. Decision by contracting officer
(a) CLAIMS GENERALLY.—
(1) SUBMISSION OF CONTRACTOR’S CLAIMS TO
CONTRACTING OFFICER.—Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the
contracting officer for a decision.
(2) CONTRACTOR’S CLAIMS IN WRITING.—Each
claim by a contractor against the Federal
Government relating to a contract shall be in
writing.
(3) CONTRACTING OFFICER TO DECIDE FEDERAL
GOVERNMENT’S CLAIMS.—Each claim by the
Federal Government against a contractor relating to a contract shall be the subject of a
written decision by the contracting officer.
(4) TIME FOR SUBMITTING CLAIMS.—
(A) IN GENERAL.—Each claim by a contractor against the Federal Government relating
to a contract and each claim by the Federal
Government against a contractor relating to
a contract shall be submitted within 6 years
after the accrual of the claim.
(B) EXCEPTION.—Subparagraph (A) of this
paragraph does not apply to a claim by the
Federal Government against a contractor
that is based on a claim by the contractor
involving fraud.
(5) APPLICABILITY.—The authority of this
subsection and subsections (c)(1), (d), and (e)
does not extend to a claim or dispute for penalties or forfeitures prescribed by statute or
regulation that another Federal agency is specifically authorized to administer, settle, or
determine.
(b) CERTIFICATION OF CLAIMS.—
(1) REQUIREMENT GENERALLY.—For claims of
more than $100,000 made by a contractor, the
contractor shall certify that—
(A) the claim is made in good faith;
(B) the supporting data are accurate and
complete to the best of the contractor’s
knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for which the
contractor believes the Federal Government
is liable; and
(D) the certifier is authorized to certify
the claim on behalf of the contractor.
(2) WHO MAY EXECUTE CERTIFICATION.—The
certification required by paragraph (1) may be
executed by an individual authorized to bind
the contractor with respect to the claim.

Page 133

§ 7103

TITLE 41—PUBLIC CONTRACTS

(3) FAILURE TO CERTIFY OR DEFECTIVE CERTIFICATION.—A contracting officer is not obligated to render a final decision on a claim of
more than $100,000 that is not certified in accordance with paragraph (1) if, within 60 days
after receipt of the claim, the contracting officer notifies the contractor in writing of the
reasons why any attempted certification was
found to be defective. A defect in the certification of a claim does not deprive a court or
an agency board of jurisdiction over the claim.
Prior to the entry of a final judgment by a
court or a decision by an agency board, the
court or agency board shall require a defective
certification to be corrected.

tribunal concerned, in the event of undue
delay on the part of the contracting officer.
(5) FAILURE TO ISSUE DECISION WITHIN REQUIRED TIME PERIOD.—Failure by a contracting
officer to issue a decision on a claim within
the required time period is deemed to be a decision by the contracting officer denying the
claim and authorizes an appeal or action on
the claim as otherwise provided in this chapter. However, the tribunal concerned may, at
its option, stay the proceedings of the appeal
or action to obtain a decision by the contracting officer.

(d) ISSUANCE OF DECISION.—The contracting officer shall issue a decision in writing and shall
mail or otherwise furnish a copy of the decision
to the contractor.
(e) CONTENTS OF DECISION.—The contracting
officer’s decision shall state the reasons for the
decision reached and shall inform the contractor
of the contractor’s rights as provided in this
chapter. Specific findings of fact are not required. If made, specific findings of fact are not
binding in any subsequent proceeding.
(f) TIME FOR ISSUANCE OF DECISION.—
(1) CLAIM OF $100,000 OR LESS.—A contracting
officer shall issue a decision on any submitted
claim of $100,000 or less within 60 days from
the contracting officer’s receipt of a written
request from the contractor that a decision be
rendered within that period.
(2) CLAIM OF MORE THAN $100,000.—A contracting officer shall, within 60 days of receipt of a
submitted certified claim over $100,000—
(A) issue a decision; or
(B) notify the contractor of the time within which a decision will be issued.

(g) FINALITY OF DECISION UNLESS APPEALED.—
The contracting officer’s decision on a claim is
final and conclusive and is not subject to review
by any forum, tribunal, or Federal Government
agency, unless an appeal or action is timely
commenced as authorized by this chapter. This
chapter does not prohibit an executive agency
from including a clause in a Federal Government contract requiring that, pending final decision of an appeal, action, or final settlement,
a contractor shall proceed diligently with performance of the contract in accordance with the
contracting officer’s decision.
(h) ALTERNATIVE MEANS OF DISPUTE RESOLUTION.—
(1) IN GENERAL.—Notwithstanding any other
provision of this chapter, a contractor and a
contracting officer may use any alternative
means of dispute resolution under subchapter
IV of chapter 5 of title 5, or other mutually
agreeable procedures, for resolving claims. All
provisions of subchapter IV of chapter 5 of
title 5 apply to alternative means of dispute
resolution under this subsection.
(2) CERTIFICATION OF CLAIM.—The contractor
shall certify the claim when required to do so
under subsection (b)(1) or other law.
(3) REJECTING REQUEST FOR ALTERNATIVE DISPUTE RESOLUTION.—
(A) CONTRACTING OFFICER.—A contracting
officer who rejects a contractor’s request for
alternative dispute resolution proceedings
shall provide the contractor with a written
explanation, citing one or more of the conditions in section 572(b) of title 5 or other specific reasons that alternative dispute resolution procedures are inappropriate.
(B) CONTRACTOR.—A contractor that rejects an agency’s request for alternative dispute resolution proceedings shall inform the
agency in writing of the contractor’s specific
reasons for rejecting the request.

(3) GENERAL REQUIREMENT OF REASONABLENESS.—The decision of a contracting officer on

(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3817.)

(c) FRAUDULENT CLAIMS.—
(1) NO AUTHORITY TO SETTLE.—This section
does not authorize an agency head to settle,
compromise, pay, or otherwise adjust any
claim involving fraud.
(2) LIABILITY OF CONTRACTOR.—If a contractor is unable to support any part of the contractor’s claim and it is determined that the
inability is attributable to a misrepresentation of fact or fraud by the contractor, then
the contractor is liable to the Federal Government for an amount equal to the unsupported
part of the claim plus all of the Federal Government’s costs attributable to reviewing the
unsupported part of the claim. Liability under
this paragraph shall be determined within 6
years of the commission of the misrepresentation of fact or fraud.

submitted claims shall be issued within a reasonable time, in accordance with regulations
prescribed by the agency, taking into account
such factors as the size and complexity of the
claim and the adequacy of information in support of the claim provided by the contractor.
(4) REQUESTING TRIBUNAL TO DIRECT ISSUANCE
WITHIN SPECIFIED TIME PERIOD.—A contractor
may request the tribunal concerned to direct a
contracting officer to issue a decision in a
specified period of time, as determined by the

HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

7103(a)(1) ....

41:605(a) (1st sentence related to
submission).

7103(a)(2) ....

41:605(a) (1st sentence related to
writing requirement).
41:605(a) (2d sentence).

7103(a)(3) ....

Source (Statutes at Large)
Pub. L. 95–563, §§ 5, 6(a) (1st,
2d, 5th–last sentences),
(b), (c)(3), (5), Nov. 1, 1978,
92 Stat. 2384, 2385.

§ 7104

TITLE 41—PUBLIC CONTRACTS

HISTORICAL AND REVISION NOTES—CONTINUED
Revised
Section
7103(a)(4)(A)

7103(a)(4)(B)
7103(a)(5) ....
7103(b)(1) ....

Source (U.S. Code)
41:605(a) (3d sentence).

41:605(a) (4th sentence).
41:605(a) (8th sentence).
41:605(c)(1) (last sentence).

7103(b)(2) ....

41:605(c)(7).

7103(b)(3) ....
7103(c)(1) ....

41:605(c)(6).
41:605(a) (last sentence).
41:604.
41:605(a) (5th sentence).
41:605(a) (6th, 7th
sentences).
41:605(c)(1) (1st sentence).

7103(c)(2) ....
7103(d) ........
7103(e) ........
7103(f)(1) ....

7103(f)(2) ....
7103(f)(3) ....
7103(f)(4) ....

41:605(c)(2).
41:605(c)(3).
41:605(c)(4).

7103(f)(5) ....
7103(g) ........
7103(h)(1) ....

41:605(c)(5).
41:605(b).
41:605(d) (1st, last
sentences).

7103(h)(2) ....

7103(h)(3)(A)

7103(h)(3)(B)

41:605(d) (2d sentence).

41:605(e) (1st sentence).

Source (Statutes at Large)
Pub. L. 95–563, § 6(a) (3d, 4th
sentences), Nov. 1, 1978, as
added Pub. L. 103–355, title
II, § 2351(a)(1), Oct. 13, 1994,
108 Stat. 3322, amended
Pub. L. 104–106, div. D,
title XLIII, § 4321(a)(6),
Feb. 10, 1996, 110 Stat. 671.

Pub. L. 95–563, § 6(c)(1) (last
sentence), Nov. 1, 1978, 92
Stat. 2385; Pub. L. 102–572,
title IX, § 907(a)(1)(A), Oct.
29, 1992, 106 Stat. 4518;
Pub. L. 103–355, title II,
§ 2351(b), Oct. 13, 1994, 108
Stat. 3322.
Pub. L. 95–563, § 6(c)(6), (7),
as added Pub. L. 102–572,
title IX, § 907(a)(1)(B), Oct.
29, 1992, 106 Stat. 4518.

Pub. L. 95–563, § 6(c)(1) (1st
sentence), (2), Nov. 1, 1978,
92 Stat. 2385; Pub. L.
103–355, title II, § 2351(b),
Oct. 13, 1994, 108 Stat. 3322.
Pub. L. 95–563, § 6(c)(4), Nov.
1, 1978, 92 Stat. 2385; Pub.
L.
103–355,
title
II,
§ 2351(e), Oct. 13, 1994, 108
Stat. 3322.
Pub. L. 95–563, § 6(d) (1st,
last sentences), as added
Pub. L. 101–552, § 6(a), Nov.
15, 1990, 104 Stat. 2745,
2746; Pub. L. 104–106, div.
D, title XLIII, § 4322(b)(6),
Feb. 10, 1996, 110 Stat. 677;
Pub. L. 105–85, div. A, title
X, § 1073(g)(3), Nov. 18,
1997, 111 Stat. 1906.
Pub. L. 95–563, § 6(d) (2d sentence), as added Pub. L.
101–552, § 6(a), Nov. 15, 1990,
104 Stat. 2745; Pub. L.
104–320, § 6(1), Oct. 19, 1996,
110 Stat. 3871.
Pub. L. 95–563, § 6(e), as
added Pub. L. 101–552,
§ 6(a), Nov. 15, 1990, 104
Stat. 2746; Pub. L. 103–355,
title II, § 2352, Oct. 13, 1994,
108 Stat. 3322; Pub. L.
104–106, div. D, title XLIII,
§§ 4321(a)(7), 4322(b)(6), Feb.
10, 1996, 110 Stat. 671, 677;
Pub. L. 104–320, § 6(2), Oct.
19, 1996, 110 Stat. 3871;
Pub. L. 105–85, div. A, title
X, § 1073(g)(3), Nov. 18,
1997, 111 Stat. 1906.

41:605(e) (last sentence).

In subsection (b)(1)(D) and (2), the word ‘‘duly’’ is
omitted as unnecessary.
In subsection (b)(3), the words ‘‘of contract appeals’’
are omitted as unnecessary because of the definition of
‘‘agency board’’ in section 7101 of the revised title.
In subsection (c)(2), the words ‘‘this subsection’’,
which appear in section 5 of the Contract Disputes Act
of 1978 (Pub. L. 95–563, 92 Stat. 2384), and which were
probably intended to mean ‘‘this section’’, are translated as ‘‘this paragraph’’ in accordance with the probable intent of Congress.
In subsection (f)(5), the words ‘‘the commencement
of’’ are omitted as unnecessary. The words ‘‘of the appeal or action’’ are substituted for ‘‘in the event an appeal or suit is so commenced in the absence of a prior

Page 134

decision by the contracting officer’’ to eliminate unnecessary words.

§ 7104. Contractor’s right of appeal from decision
by contracting officer
(a) APPEAL TO AGENCY BOARD.—A contractor,
within 90 days from the date of receipt of a contracting officer’s decision under section 7103 of
this title, may appeal the decision to an agency
board as provided in section 7105 of this title.
(b) BRINGING AN ACTION DE NOVO IN FEDERAL
COURT.—
(1) IN GENERAL.—Except as provided in paragraph (2), and in lieu of appealing the decision
of a contracting officer under section 7103 of
this title to an agency board, a contractor
may bring an action directly on the claim in
the United States Court of Federal Claims,
notwithstanding any contract provision, regulation, or rule of law to the contrary.
(2) TENNESSEE VALLEY AUTHORITY.—In the
case of an action against the Tennessee Valley
Authority, the contractor may only bring an
action directly on the claim in a district court
of the United States pursuant to section 1337
of title 28, notwithstanding any contract provision, regulation, or rule of law to the contrary.
(3) TIME FOR FILING.—A contractor shall file
any action under paragraph (1) or (2) within 12
months from the date of receipt of a contracting officer’s decision under section 7103 of this
title.
(4) DE NOVO.—An action under paragraph (1)
or (2) shall proceed de novo in accordance with
the rules of the appropriate court.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3820.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

7104(a) ........

41:606.

7104(b) ........

41:609(a).

Source (Statutes at Large)
Pub. L. 95–563, § 7, Nov. 1,
1978, 92 Stat. 2385.
Pub. L. 95–563, § 10(a), Nov. 1,
1978, 92 Stat. 2388; Pub. L.
97–164, title I, § 161(10),
Apr. 2, 1982, 96 Stat. 49.

In subsection (a), the words ‘‘of contract appeals’’ are
omitted as unnecessary because of the definition of
‘‘agency board’’ in section 7101 of the revised title.
In subsection (b)(1), the words ‘‘United States Court
of Federal Claims’’ are substituted for ‘‘United States
Claims Court’’ because of section 902(b)(1) of the Federal Courts Administration Act of 1992 (Pub. L. 102–572,
106 Stat. 4516, 28 U.S.C. 171 note).

§ 7105. Agency boards
(a) ARMED SERVICES BOARD.—
(1) ESTABLISHMENT.—An Armed Services
Board of Contract Appeals may be established
within the Department of Defense when the
Secretary of Defense, after consultation with
the Administrator, determines from a workload study that the volume of contract claims
justifies the establishment of a full-time agency board of at least 3 members who shall have
no other inconsistent duties. Workload studies
will be updated at least once every 3 years and
submitted to the Administrator.
(2) APPOINTMENT OF MEMBERS AND COMPENSATION.—Members of the Armed Services Board
shall be selected and appointed in the same

Page 135

TITLE 41—PUBLIC CONTRACTS

manner as administrative law judges appointed pursuant to section 3105 of title 5, with
an additional requirement that members must
have had at least 5 years of experience in public contract law. The Secretary of Defense
shall designate the chairman and vice chairman of the Armed Services Board from among
the appointed members. Compensation for the
chairman, vice chairman, and other members
shall be determined under section 5372a of title
5.
(b) CIVILIAN BOARD.—
(1) ESTABLISHMENT.—There is established in
the General Services Administration the Civilian Board of Contract Appeals.
(2) MEMBERSHIP.—
(A) ELIGIBILITY.—The Civilian Board consists of members appointed by the Administrator of General Services (in consultation
with the Administrator for Federal Procurement Policy) from a register of applicants
maintained by the Administrator of General
Services, in accordance with rules issued by
the Administrator of General Services (in
consultation with the Administrator for
Federal Procurement Policy) for establishing and maintaining a register of eligible applicants and selecting Civilian Board members. The Administrator of General Services
shall appoint a member without regard to
political affiliation and solely on the basis of
the professional qualifications required to
perform the duties and responsibilities of a
Civilian Board member.
(B) APPOINTMENT OF MEMBERS AND COMPENSATION.—Members of the Civilian Board
shall be selected and appointed to serve in
the same manner as administrative law
judges appointed pursuant to section 3105 of
title 5, with an additional requirement that
members must have had at least 5 years experience in public contract law. Compensation for the members shall be determined
under section 5372a of title 5.
(3) REMOVAL.—Members of the Civilian
Board are subject to removal in the same manner as administrative law judges, as provided
in section 7521 of title 5.
(4) FUNCTIONS.—
(A) IN GENERAL.—The Civilian Board has
jurisdiction as provided by subsection
(e)(1)(B).
(B) ADDITIONAL JURISDICTION.—With the
concurrence of the Federal agencies affected,
the Civilian Board may assume—
(i) jurisdiction over any additional category of laws or disputes over which an
agency board of contract appeals established pursuant to section 8 of the Contract Disputes Act exercised jurisdiction
before January 6, 2007; and
(ii) any other function the agency board
performed before January 6, 2007, on behalf
of those agencies.
(c) TENNESSEE VALLEY AUTHORITY BOARD.—
(1) ESTABLISHMENT.—The Board of Directors
of the Tennessee Valley Authority may establish a board of contract appeals of the Tennessee Valley Authority of an indeterminate
number of members.

§ 7105

(2) APPOINTMENT OF MEMBERS AND COMPENSATION.—The Board of Directors of the Tennessee
Valley Authority shall establish criteria for
the appointment of members to the agency
board established under paragraph (1), and
shall designate a chairman of the agency
board. The chairman and other members of
the agency board shall receive compensation,
at the daily equivalent of the rates determined
under section 5372a of title 5, for each day they
are engaged in the actual performance of their
duties as members of the agency board.
(d) POSTAL SERVICE BOARD.—
(1) ESTABLISHMENT.—There is established an
agency board of contract appeals known as the
Postal Service Board of Contract Appeals.
(2) APPOINTMENT AND SERVICE OF MEMBERS.—
The Postal Service Board of Contract Appeals
consists of judges appointed by the Postmaster General. The judges shall meet the
qualifications of and serve in the same manner
as members of the Civilian Board.
(3) APPLICATION.—This chapter applies to
contract disputes before the Postal Service
Board of Contract Appeals in the same manner
as it applies to contract disputes before the Civilian Board.
(e) JURISDICTION.—
(1) IN GENERAL.—
(A) ARMED SERVICES BOARD.—The Armed
Services Board has jurisdiction to decide
any appeal from a decision of a contracting
officer of the Department of Defense, the Department of the Army, the Department of
the Navy, the Department of the Air Force,
or the National Aeronautics and Space Administration relative to a contract made by
that department or agency.
(B) CIVILIAN BOARD.—The Civilian Board
has jurisdiction to decide any appeal from a
decision of a contracting officer of any executive agency (other than the Department of
Defense, the Department of the Army, the
Department of the Navy, the Department of
the Air Force, the National Aeronautics and
Space Administration, the United States
Postal Service, the Postal Regulatory Commission, or the Tennessee Valley Authority)
relative to a contract made by that agency.
(C) POSTAL SERVICE BOARD.—The Postal
Service Board of Contract Appeals has jurisdiction to decide any appeal from a decision
of a contracting officer of the United States
Postal Service or the Postal Regulatory
Commission relative to a contract made by
either agency.
(D) OTHER AGENCY BOARDS.—Each other
agency board has jurisdiction to decide any
appeal from a decision of a contracting officer relative to a contract made by its agency.
(2) RELIEF.—In exercising this jurisdiction,
an agency board may grant any relief that
would be available to a litigant asserting a
contract claim in the United States Court of
Federal Claims.
(f) SUBPOENA, DISCOVERY, AND DEPOSITION.—A
member of an agency board of contract appeals
may administer oaths to witnesses, authorize

§ 7106

TITLE 41—PUBLIC CONTRACTS

depositions and discovery proceedings, and require by subpoena the attendance of witnesses,
and production of books and papers, for the taking of testimony or evidence by deposition or in
the hearing of an appeal by the agency board. In
case of contumacy or refusal to obey a subpoena
by a person who resides, is found, or transacts
business within the jurisdiction of a United
States district court, the court, upon application of the agency board through the Attorney
General, or upon application by the board of
contract appeals of the Tennessee Valley Authority, shall have jurisdiction to issue the person an order requiring the person to appear before the agency board or a member of the agency
board, to produce evidence or to give testimony,
or both. Any failure of the person to obey the
order of the court may be punished by the court
as contempt of court.

HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

7105(a) ........

41:607(a)(1), (b)(1).

7105(b) ........

41:438.

7105(c) ........

41:607(a)(2), (b)(2).

7105(d) ........

41:607(c) (1st, 3d,
last sentences).

7105(e)(1)
(A), (B).

41:607(d) (1st, 2d sentences).

7105(e)(1)(C)

7105(f) ........

41:607(c) (2d sentence).
41:607(d) (3d sentence).
41:607(d) (last sentence).
41:610.

7105(g) ........

41:607(e).

(g) DECISIONS.—An agency board shall—
(1) to the fullest extent practicable provide
informal, expeditious, and inexpensive resolution of disputes;
(2) issue a decision in writing or take other
appropriate action on each appeal submitted;
and
(3) mail or otherwise furnish a copy of the
decision to the contractor and the contracting
officer.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3820;
Pub. L. 111–259, title IV, § 422, Oct. 7, 2010, 124
Stat. 2727; Pub. L. 111–383, div. A, title X,
§ 1075(o), Jan. 7, 2011, 124 Stat. 4378.)
AMENDMENTS NOT SHOWN IN TEXT
Subsecs. (b) and (e)(1)(A), (B), (D) and (2) of
this section were derived from sections 438 and
607(d), respectively, of former Title 41, Public
Contracts. Sections 438 and 607(d) were amended by Pub. L. 111–383, div. A, title X, § 1075(o),
Jan. 7, 2011, 124 Stat. 4378, and Pub. L. 111–259,
title IV, § 422, Oct. 7, 2010, 124 Stat. 2727, respectively, prior to being repealed and reenacted as
subsecs. (b) and (e)(1)(A), (B), (D) and (2) of
this section by Pub. L. 111–350, §§ 3, 7(b), Jan. 4,
2011, 124 Stat. 3677, 3855. For applicability of
those amendments to this section, see section
6(a) of Pub. L. 111–350, set out as a Transitional
and Savings Provisions note preceding section
101 of this title. Section 438 of former Title 41
was amended in subsec. (c)(1) by striking ‘‘(41
U.S.C. 607(b))’’ and inserting ‘‘(41 U.S.C.
607(d))’’ and in subsec. (c)(2)(A) by inserting
‘‘of 1978’’ after ‘‘Contract Disputes Act’’. Section 607(d) of former Title 41 was amended by
adding at the end ‘‘Notwithstanding any other
provision of this section and any other provision of law, an appeal from a decision of a contracting officer of the Central Intelligence
Agency relative to a contract made by that
Agency may be filed with whichever of the
Armed Services Board of Contract Appeals or
the Civilian Board of Contract Appeals is specified by such contracting officer as the Board to
which such an appeal may be made and such
Board shall have jurisdiction to decide that appeal.’’

Page 136

7105(e)(1)(D)
7105(e)(2) ....

Source (Statutes at Large)
Pub. L. 95–563, § 8(a)(1),
(b)(1), Nov. 1, 1978, 92 Stat.
2385; Pub. L. 101–509, title
V, § 529 [title I, § 104(d)(4)],
Nov. 5, 1990, 104 Stat. 1447;
Pub. L. 109–163, div. A,
title VIII, § 847(d)(3), Jan.
6, 2006, 119 Stat. 3394.
Pub. L. 93–400, § 42, as added
Pub. L. 109–163, div. A,
title VIII, § 847(a), Jan. 6,
2006, 119 Stat. 3391.
Pub. L. 95–563, § 8(a)(2),
(b)(2), Nov. 1, 1978, 92 Stat.
2385, 2386.
Pub. L. 95–563, § 8(c), Nov. 1,
1978, 92 Stat. 2386; Pub. L.
109–163, div. A, title VIII,
§ 847(d)(2)(B), Jan. 6, 2006,
119 Stat. 3394.
Pub. L. 95–563, § 8(d), Nov. 1,
1978, 92 Stat. 2386; Pub. L.
97–164, title I, § 160(a)(15),
Apr. 2, 1982, 96 Stat. 48;
Pub. L. 109–163, div. A,
title VIII, § 847(d)(2)(A),
Jan. 6, 2006, 119 Stat. 3393.

Pub. L. 95–563, § 11, Nov. 1,
1978, 92 Stat. 2388.
Pub. L. 95–563, § 8(e), Nov. 1,
1978, 92 Stat. 2386.

In subsection (a)(2), the words ‘‘administrative law
judges’’ are substituted for ‘‘hearing examiners’’ because of section 3 of Public Law 95–251 (5 U.S.C. 3105
note). The words ‘‘Full-time members of agency boards
serving as such on the effective date of this chapter
shall be considered qualified’’ are omitted as obsolete.
In subsection (b), the text of 41 U.S.C. 438 (b)(1)(C) is
omitted as obsolete.
In subsection (e)(1)(B) and (C), the words ‘‘Postal Regulatory Commission’’ are substituted for ‘‘Postal Rate
Commission’’ because of section 604(f) of the Postal Accountability and Enhancement Act (Public Law 109–435,
120 Stat. 3242, 39 U.S.C. 404 note).
REFERENCES IN TEXT
Section 8 of the Contract Disputes Act, referred to in
subsec. (b)(4)(B)(i), probably means section 8 of Pub. L.
95–563, the Contract Disputes Act of 1978, which was
classified to former section 607 of this title prior to
being repealed and reenacted as subsecs. (a), (c) to (e),
and (g) of this section by Pub. L. 111–350, §§ 3, 7(b), Jan.
4, 2011, 124 Stat. 3677, 3855.

§ 7106. Agency board procedures for accelerated
and small claims
(a) ACCELERATED PROCEDURE WHERE $100,000 OR
LESS IN DISPUTE.—The rules of each agency
board shall include a procedure for the accelerated disposition of any appeal from a decision of
a contracting officer where the amount in dispute is $100,000 or less. The accelerated procedure is applicable at the sole election of the contractor. An appeal under the accelerated procedure shall be resolved, whenever possible, within
180 days from the date the contractor elects to
use the procedure.
(b) SMALL CLAIMS PROCEDURE.—
(1) IN GENERAL.—The rules of each agency
board shall include a procedure for the expedited disposition of any appeal from a decision
of a contracting officer where the amount in
dispute is $50,000 or less, or in the case of a
small business concern (as defined in the
Small Business Act (15 U.S.C. 631 et seq.) and

Page 137

TITLE 41—PUBLIC CONTRACTS

regulations under that Act), $150,000 or less.
The small claims procedure is applicable at
the sole election of the contractor.
(2) SIMPLIFIED RULES OF PROCEDURE.—The
small claims procedure shall provide for simplified rules of procedure to facilitate the decision of any appeal. An appeal under the small
claims procedure may be decided by a single
member of the agency board with such concurrences as may be provided by rule or regulation.
(3) TIME OF DECISION.—An appeal under the
small claims procedure shall be resolved,
whenever possible, within 120 days from the
date the contractor elects to use the procedure.
(4) FINALITY OF DECISION.—A decision against
the Federal Government or against the contractor reached under the small claims procedure is final and conclusive and may not be set
aside except in cases of fraud.
(5) NO PRECEDENT.—Administrative determinations and final decisions under this subsection have no value as precedent for future
cases under this chapter.
(6) REVIEW OF REQUISITE AMOUNTS IN CONTROVERSY.—The Administrator, from time to
time, may review the dollar amounts specified
in paragraph (1) and adjust the amounts in accordance with economic indexes selected by
the Administrator.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3823.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

7106(a) ........

41:607(f).

7106(b) ........

41:608.

Source (Statutes at Large)
Pub. L. 95–563, § 8(f), Nov. 1,
1978, 92 Stat. 2386; Pub. L.
103–355, title II, § 2351(c),
Oct. 13, 1994, 108 Stat. 3322.
Pub. L. 95–563, § 9, Nov. 1,
1978, 92 Stat. 2387; Pub. L.
103–355, title II, § 2351(d),
Oct. 13, 1994, 108 Stat 3322;
Pub. L. 109–364, div. A,
title VIII, § 857, Oct. 17,
2006, 120 Stat. 2349.

In subsection (a), the word ‘‘only’’ is omitted for consistency with a similar provision in 41:608(a) and because the word ‘‘only’’ is redundant with the word
‘‘sole’’.
In subsection (b)(6), the words ‘‘from time to time,
may review’’ are substituted for ‘‘is authorized to review at least every three years’’ because the source
law, while effectively granting the Administrator authority to conduct the reviews, does not require the
Administrator to conduct any reviews, and does not restrict the number of reviews the Administrator may
conduct during any time period. The words ‘‘beginning
with the third year after November 1, 1978’’ are omitted
as obsolete. The words ‘‘the dollar amount specified in
paragraph (1)’’ are substituted for ‘‘the dollar amount
defined in subsection (a) of this section as a small
claim’’ to eliminate unnecessary words and because
41:608(a), restated as paragraph (1), does not explicitly
provide a definition for the term ‘‘small claim’’.
SENATE REVISION AMENDMENT
subsec. (b)(6), ‘‘AMOUNTS’’ substituted for
‘‘AMOUNT’’ in heading and ‘‘amounts’’ substituted for
‘‘amount’’ in two places in text by S. Amdt. 4726 (111th
Cong.). See 156 Cong. Rec. S8442, Dec. 2, 2010 (daily ed.).
In

§ 7107. Judicial review of agency board decisions
(a) REVIEW.—

§ 7107

(1) IN GENERAL.—The decision of an agency
board is final, except that—
(A) a contractor may appeal the decision
to the United States Court of Appeals for the
Federal Circuit within 120 days from the
date the contractor receives a copy of the
decision; or
(B) if an agency head determines that an
appeal should be taken, the agency head,
with the prior approval of the Attorney General, may transmit the decision to the
United States Court of Appeals for the Federal Circuit for judicial review under section
1295 of title 28, within 120 days from the date
the agency receives a copy of the decision.
(2) TENNESSEE VALLEY AUTHORITY.—Notwithstanding paragraph (1), a decision of the board
of contract appeals of the Tennessee Valley
Authority is final, except that—
(A) a contractor may appeal the decision
to a United States district court pursuant to
section 1337 of title 28, within 120 days from
the date the contractor receives a copy of
the decision; or
(B) the Tennessee Valley Authority may
appeal the decision to a United States district court pursuant to section 1337 of title
28, within 120 days from the date of the decision.
(3) REVIEW OF ARBITRATION.—An award by an
arbitrator under this chapter shall be reviewed
pursuant to sections 9 to 13 of title 9, except
that the court may set aside or limit any
award that is found to violate limitations imposed by Federal statute.
(b) FINALITY OF AGENCY BOARD DECISIONS ON
QUESTIONS OF LAW AND FACT.—Notwithstanding
any contract provision, regulation, or rule of
law to the contrary, in an appeal by a contractor or the Federal Government from the decision of an agency board pursuant to subsection
(a)—
(1) the decision of the agency board on a
question of law is not final or conclusive; but
(2) the decision of the agency board on a
question of fact is final and conclusive and
may not be set aside unless the decision is—
(A) fraudulent, arbitrary, or capricious;
(B) so grossly erroneous as to necessarily
imply bad faith; or
(C) not supported by substantial evidence.
(c) REMAND.—In an appeal by a contractor or
the Federal Government from the decision of an
agency board pursuant to subsection (a), the
court may render an opinion and judgment and
remand the case for further action by the agency board or by the executive agency as appropriate, with direction the court considers just
and proper.
(d) CONSOLIDATION.—If 2 or more actions arising from one contract are filed in the United
States Court of Federal Claims and one or more
agency boards, for the convenience of parties or
witnesses or in the interest of justice, the
United States Court of Federal Claims may
order the consolidation of the actions in that
court or transfer any actions to or among the
agency boards involved.
(e) JUDGMENTS AS TO FEWER THAN ALL CLAIMS
OR PARTIES.—In an action filed pursuant to this

§ 7108

TITLE 41—PUBLIC CONTRACTS

chapter involving 2 or more claims, counterclaims, cross-claims, or third-party claims, and
where a portion of one of the claims can be divided for purposes of decision or judgment, and
in any action where multiple parties are involved, the court, whenever appropriate, may
enter a judgment as to one or more but fewer
than all of the claims or portions of claims or
parties.
(f) ADVISORY OPINIONS.—
(1) IN GENERAL.—Whenever an action involving an issue described in paragraph (2) is pending in a district court of the United States,
the district court may request an agency
board to provide the court with an advisory
opinion on the matters of contract interpretation under consideration.
(2) APPLICABLE ISSUE.—An issue referred to
in paragraph (1) is any issue that could be the
proper subject of a final decision of a contracting officer appealable under this chapter.
(3) REFERRAL TO AGENCY BOARD WITH JURISDICTION.—A district court shall direct a request under paragraph (1) to the agency board
having jurisdiction under this chapter to adjudicate appeals of contract claims under the
contract being interpreted by the court.
(4) TIMELY RESPONSE.—After receiving a request for an advisory opinion under paragraph
(1), an agency board shall provide the advisory
opinion in a timely manner to the district
court making the request.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3824.)
HISTORICAL AND REVISION NOTES
Revised
Section
7107(a) ........

Source (U.S. Code)
41:607(g).

7107(b) ........

41:609(b).

7107(c) ........

41:609(c).

7107(d) ........

41:609(d).

7107(e) ........
7107(f) ........

41:609(e).
41:609(f).

In subsection (f)(1), the words ‘‘under consideration’’
are substituted for ‘‘at issue’’ to avoid potential confusion with the words ‘‘issue described in paragraph (2)’’.

§ 7108. Payment of claims
(a) JUDGMENTS.—Any judgment against the
Federal Government on a claim under this chapter shall be paid promptly in accordance with
the procedures provided by section 1304 of title
31.
(b) MONETARY AWARDS.—Any monetary award
to a contractor by an agency board shall be paid
promptly in accordance with the procedures
contained in subsection (a).
(c) REIMBURSEMENT.—Payments made pursuant to subsections (a) and (b) shall be reimbursed to the fund provided by section 1304 of
title 31 by the agency whose appropriations were
used for the contract out of available amounts
or by obtaining additional appropriations for
purposes of reimbursement.
(d) TENNESSEE VALLEY AUTHORITY.—
(1)
JUDGMENTS.—Notwithstanding
subsections (a) to (c), any judgment against the
Tennessee Valley Authority on a claim under
this chapter shall be paid promptly in accordance with section 9(b) of the Tennessee Valley
Authority Act of 1933 (16 U.S.C. 831h(b)).
(2) MONETARY AWARDS.—Notwithstanding
subsections (a) to (c), any monetary award to
a contractor by the board of contract appeals
of the Tennessee Valley Authority shall be
paid in accordance with section 9(b) of the
Tennessee Valley Authority Act of 1933 (16
U.S.C. 831h(b)).
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3825.)

Source (Statutes at Large)
Pub. L. 95–563, § 8(g), Nov. 1,
1978, 92 Stat. 2387; Pub. L.
97–164, title I, § 156, Apr. 2,
1982, 96 Stat. 47; Pub. L.
101–552, § 6(b), Nov. 15, 1990,
104 Stat. 2746.
Pub. L. 95–563, § 10(b), (e),
Nov. 1, 1978, 92 Stat. 2388.
Pub. L. 95–563, § 10(c), Nov. 1,
1978, 92 Stat. 2388; Pub. L.
97–164, title I, § 157, Apr. 2,
1982, 96 Stat. 47.
Pub. L. 95–563, § 10(d), Nov. 1,
1978, 92 Stat. 2388; Pub. L.
97–164, title I, § 160(a)(15),
Apr. 2, 1982, 96 Stat. 48.
Pub. L. 95–563, § 10(f), as
added Pub. L. 103–355, title
II, § 2354, Oct. 13, 1994, 108
Stat. 3323.

In subsection (a)(1)(B), the words ‘‘may transmit’’ are
substituted for ‘‘transmits’’ to correct the grammatical
structure of the provision in accordance with the probable intent of Congress. The words ‘‘the decision’’ are
substituted for ‘‘the decision of the board of contract
appeals’’ and for ‘‘the board’s decision’’ to eliminate
unnecessary
words
and
for
consistency
with
41:607(g)(1)(A).
In subsection (a)(2)(B), the words ‘‘in any case’’ are
omitted as unnecessary.
In subsection (d), the words ‘‘United States Court of
Federal Claims’’ are substituted for ‘‘United States
Claims Court’’ because of section 902(b)(1) of the Federal Courts Administration Act of 1992 (Pub. L. 102–572,
106 Stat. 4516, 28 U.S.C. 171 note).
In subsection (f)(1), (3), and (4), the words ‘‘agency
board’’ are substituted for ‘‘board of contract appeals’’
to eliminate unnecessary words and for consistency
with the definition of ‘‘agency board’’ in section 7101 of
the revised title.

Page 138

HISTORICAL AND REVISION NOTES
Revised
Section
7108 ............

Source (U.S. Code)
41:612.

Source (Statutes at Large)
Pub. L. 95–563, § 13, Nov. 1,
1978, 92 Stat. 2389; Pub. L.
104–106, div. D, title XLIII,
§ 4322(b)(7), Feb. 10, 1996,
110 Stat. 677.

§ 7109. Interest
(a) PERIOD.—
(1) IN GENERAL.—Interest on an amount
found due a contractor on a claim shall be
paid to the contractor for the period beginning
with the date the contracting officer receives
the contractor’s claim, pursuant to section
7103(a) of this title, until the date of payment
of the claim.
(2) DEFECTIVE CERTIFICATION.—On a claim for
which the certification under section 7103(b)(1)
of this title is found to be defective, any interest due under this section shall be paid for the
period beginning with the date the contracting
officer initially receives the contractor’s
claim until the date of payment of the claim.
(b) RATE.—Interest shall accrue and be paid at
a rate which the Secretary of the Treasury shall
specify as applicable for each successive 6month period. The rate shall be determined by
the Secretary of the Treasury taking into consideration current private commercial rates of
interest for new loans maturing in approximately 5 years.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3825.)

Page 139

HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

Source (Statutes at Large)

7109(a)(1) ....

41:611 (1st sentence).

7109(a)(2) ....

41:611 note.

Pub. L. 95–563, § 12, Nov. 1,
1978, 92 Stat. 2389.
Pub. L. 102–572, title IX,
§ 907(a)(3), Oct. 29, 1992, 106
Stat. 4518.

7109(b) ........

41:611 (last sentence).

In subsection (a)(2), the words ‘‘on or after the date
of the enactment of this Act’’, ‘‘the later of’’, and ‘‘or
the date of the enactment of this Act’’ are omitted as
obsolete.
Subsection (b) is substituted for ‘‘The interest provided for in this section shall be paid at the rate established by the Secretary of the Treasury pursuant to
Public Law 92–41 (85 Stat. 97) for the Renegotiation
Board’’ to eliminate obsolete language and to codify
the criteria under which the interest rate is computed.
Section 2(a)(3) of the Act of July 1, 1971 (Pub. L. 92–41,
85 Stat. 97), amended section 105(b)(2) of the Renegotiation Act of 1951 (Mar. 23, 1951, ch. 15, 65 Stat. 13) by
adding provisions substantially similar to those enacted here. However, the Renegotiation Act of 1951
(Mar. 23, 1951, ch. 15, 65 Stat. 7) was omitted from the
Code pursuant to section 102(c)(1) of the Act (65 Stat. 8),
amended several times, the last being Public Law 94–185
(89 Stat. 1061), which provided that most provisions of
that Act do not apply to receipts and accruals attributable to contract performance after September 30,
1976, and in view of the termination of the Renegotiation Board and the transfer of property and records of
the Board to the Administrator of the General Services
Administration on March 31, 1979, pursuant to Public
Law 95–431 (92 Stat. 1043). Although the Renegotiation
Board is no longer in existence, Federal agencies, including the General Services Administration, are required to use interest rates that are computed under
the criteria set out in this subsection. See 31:3902(a)
and the website of the Bureau of the Public Debt, available
at
http://www.publicdebt.treas.gov/opd/
opdprmt2.htm. For an example of publication of rates
under the criteria enacted here, see Federal Register,
volume 67, number 247, page 78566, December 24, 2002.

Subtitle IV—Miscellaneous
Chapter

81.
83.
85.

Sec.

Drug-Free Workplace .........................
Buy American .......................................
Committee for Purchase From People Who Are Blind or Severely
Disabled .............................................
Kickbacks ..............................................

87.

8101
8301
8501
8701

CHAPTER 81—DRUG-FREE WORKPLACE
Sec.

8101.
8102.
8103.
8104.
8105.
8106.

§ 8102

TITLE 41—PUBLIC CONTRACTS

Definitions and construction.
Drug-free workplace requirements for Federal
contractors.
Drug-free workplace requirements for Federal
grant recipients.
Employee sanctions and remedies.
Waiver.
Regulations.

§ 8101. Definitions and construction
(a) DEFINITIONS.—In this chapter:
(1) CONTRACTOR.—The term ‘‘contractor’’
means the department, division, or other unit
of a person responsible for the performance
under the contract.
(2) CONTROLLED SUBSTANCE.—The term ‘‘controlled substance’’ means a controlled substance in schedules I through V of section 202

of the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. 812).
(3) CONVICTION.—The term ‘‘conviction’’
means a finding of guilt (including a plea of
nolo contendere), an imposition of sentence, or
both, by a judicial body charged with the responsibility to determine violations of Federal
or State criminal drug statutes.
(4) CRIMINAL DRUG STATUTE.—The term
‘‘criminal drug statute’’ means a criminal
statute involving manufacture, distribution,
dispensation, use, or possession of a controlled
substance.
(5) DRUG-FREE WORKPLACE.—The term ‘‘drugfree workplace’’ means a site of an entity—
(A) for the performance of work done in
connection with a specific contract or grant
described in section 8102 or 8103 of this title;
and
(B) at which employees of the entity are
prohibited from engaging in the unlawful
manufacture,
distribution,
dispensation,
possession, or use of a controlled substance
in accordance with the requirements of the
Anti-Drug Abuse Act of 1988 (Public Law
100–690, 102 Stat. 4181).
(6) EMPLOYEE.—The term ‘‘employee’’ means
the employee of a contractor or grantee directly engaged in the performance of work
pursuant to the contract or grant described in
section 8102 or 8103 of this title.
(7) FEDERAL AGENCY.—The term ‘‘Federal
agency’’ means an agency as defined in section
552(f) of title 5.
(8) GRANTEE.—The term ‘‘grantee’’ means
the department, division, or other unit of a
person responsible for the performance under
the grant.
(b) CONSTRUCTION.—This chapter does not require law enforcement agencies to comply with
this chapter if the head of the agency determines it would be inappropriate in connection
with the agency’s undercover operations.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3826.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

8101(a)(1) ....

41:706(7).

8101(a)(2) ....
8101(a)(3) ....
8101(a)(4) ....
8101(a)(5) ....
8101(a)(6) ....
8101(a)(7) ....
8101(a)(8) ....
8101(b) ........

41:706(3).
41:706(4).
41:706(5).
41:706(1).
41:706(2).
41:706(8).
41:706(6).
41:707.

Source (Statutes at Large)
Pub. L. 100–690, title V,
§§ 5157, 5158, Nov. 18, 1988,
102 Stat. 4308.

§ 8102. Drug-free workplace requirements for
Federal contractors
(a) IN GENERAL.—
(1) PERSONS OTHER THAN INDIVIDUALS.—A person other than an individual shall not be considered a responsible source (as defined in section 113 of this title) for the purposes of being
awarded a contract for the procurement of any
property or services of a value greater than
the simplified acquisition threshold (as defined in section 134 of this title) by a Federal
agency, other than a contract for the procure-