Collapse to view only § 3803. Security for advance payments
- § 3801. Authority of agency
- § 3802. Payment
- § 3803. Security for advance payments
- § 3804. Conditions for progress payments
- § 3805. Payments for commercial products and commercial services
- § 3806. Action in case of fraud
- § 3807. Vesting of title in the United States
- § 3808. Certain Navy contracts
§ 3801. Authority of agency
(a)Payment Authority.—The head of any agency may—
(1) make advance, partial, progress, or other payments under contracts for property or services made by the agency; and
(2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.
(b)Payment Dates for Contractors That Are Small Business Concerns.—
(1)Prime contractors.—For a prime contractor (as defined in section 8701 of title 41) that is a small business concern (as defined in section 3 of the Small Business Act (15 U.S.C. 632)), the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due.
(2)Subcontractors.—For a prime contractor that subcontracts with a small business concern, the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due if the prime contractor agrees to make payments to the subcontractor in accordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (b), Jan. 1, 2021, 134 Stat. 4234.)
§ 3802. Payment
(a)Preference for Performance-Based Payments.—Whenever practicable, payments under section 3801 of this title shall be made using performance-based payments on any of the following bases:
(1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.
(2) Accomplishment of events defined in the program management plan.
(3) Other quantifiable measures of results.
(b)Basis for performance-based payments.—Performance-based payments shall not be conditioned upon costs incurred in contract performance but on the achievement of performance outcomes listed in subsection (a).
(c)Contractor Accounting Systems.—
(1) In order to receive performance-based payments, a contractor’s accounting system shall be in compliance with Generally Accepted Accounting Principles, and there shall be no requirement for a contractor to develop Government-unique accounting systems or practices as a prerequisite for agreeing to receive performance-based payments.
(2) Nothing in this chapter shall be construed to grant the Defense Contract Audit Agency the authority to audit compliance with Generally Accepted Accounting Principles.
(d)Payment Amount.—Payments made under section 3801 of this title may not exceed the unpaid contract price.
(e)Eligibility of Nontraditional Defense Contractors.—The Secretary of Defense shall ensure that nontraditional defense contractors and other private sector companies are eligible for performance-based payments, consistent with best commercial practices.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (c), Jan. 1, 2021, 134 Stat. 4234, 4235.)
§ 3803. Security for advance payments
Advance payments made under section 3801 of this title may be made only if the contractor gives adequate security and after a determination by the head of the agency that to do so would be in the public interest. Such security may be in the form of a lien in favor of the United States on the property contracted for, on the balance in an account in which such payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien is paramount to any other liens and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the United States.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (d), Jan. 1, 2021, 134 Stat. 4234, 4236.)
§ 3804. Conditions for progress payments
(a)Payment Commensurate With Work.—The Secretary of Defense shall ensure that any payment for work in progress (including materials, labor, and other items) under a defense contract that provides for such payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence.
(b)Limitation.—The Secretary shall ensure that progress payments referred to in subsection (a) are not made for more than 80 percent of the work accomplished under a defense contract so long as the Secretary has not made the contractual terms, specifications, and price definite.
(c)Applicability.—This section applies to any contract in an amount greater than $25,000.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (e), Jan. 1, 2021, 134 Stat. 4234, 4236.)
§ 3805. Payments for commercial products and commercial services
(a)Terms and Conditions for Payments.—Payments under section 3801 of this title for commercial products and commercial services may be made under such terms and conditions as the head of the agency determines are appropriate or customary in the commercial marketplace and are in the best interests of the United States.
(b)Security for Payments.—The head of the agency shall obtain adequate security for such payments. If the security is in the form of a lien in favor of the United States, such lien is paramount to all other liens and is effective immediately upon the first payment, without filing, notice, or other action by the United States.
(c)Limitation on Advance Payments.—Advance payments made under section 3801 of this title for commercial products and commercial services may include payments, in a total amount of not more than 15 percent of the contract price, in advance of any performance of work under the contract.
(d)Nonapplication of Certain Conditions.—The conditions of sections 3803 and 3804 of this title need not be applied if they would be inconsistent, as determined by the head of the agency, with commercial terms and conditions pursuant to this section.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (f), Jan. 1, 2021, 134 Stat. 4234, 4236.)
§ 3806. Action in case of fraud
(a)Remedy Coordination Official Defined.—In this section, the term “remedy coordination official”, with respect to an agency, means the person or entity in that agency who coordinates within that agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities.
(b)Recommendation to Reduce or Suspend Payments.—In any case in which the remedy coordination official of an agency finds that there is substantial evidence that the request of a contractor for advance, partial, or progress payment under a contract awarded by that agency is based on fraud, the remedy coordination official shall recommend that the head of the agency reduce or suspend further payments to such contractor.
(c)Reduction or Suspension of Payments.—The head of an agency receiving a recommendation under subsection (b) in the case of a contractor’s request for payment under a contract shall determine whether there is substantial evidence that the request is based on fraud. Upon making such a determination, the agency head may reduce or suspend further payments to the contractor under such contract.
(d)Extent of Reduction or Suspension.—The extent of any reduction or suspension of payments by the head of an agency under subsection (c) on the basis of fraud shall be reasonably commensurate with the anticipated loss to the United States resulting from the fraud.
(e)Written Justification.—A written justification for each decision of the head of an agency whether to reduce or suspend payments under subsection (c) and for each recommendation received by such agency head in connection with such decision shall be prepared and be retained in the files of such agency.
(f)Notice.—The head of an agency shall prescribe procedures to ensure that, before such agency head decides to reduce or suspend payments in the case of a contractor under subsection (c), the contractor is afforded notice of the proposed reduction or suspension and an opportunity to submit matters to the head of the agency in response to such proposed reduction or suspension.
(g)Review.—Not later than 180 days after the date on which the head of an agency reduces or suspends payments to a contractor under subsection (c), the remedy coordination official of such agency shall—
(1) review the determination of fraud on which the reduction or suspension is based; and
(2) transmit a recommendation to the head of such agency whether the suspension or reduction should continue.
(h)Annual Report.—The head of an agency shall prepare for each year a report containing the recommendations made by the remedy coordination official of that agency to reduce or suspend payments under subsection (c), the actions taken on the recommendations and the reasons for such actions, and an assessment of the effects of such actions on the Federal Government. The Secretary of each military department shall transmit the annual report of such department to the Secretary of Defense. Each such report shall be available to any member of Congress upon request.
(i)Restriction on Delegation.—The head of an agency may not delegate responsibilities under this section to any person in a position below level IV of the Executive Schedule.
(j)Inapplicability to Coast Guard.—This section applies to the agencies named in paragraphs (1), (2), (3), (4), and (6) of section 3063 of this title.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (g), Jan. 1, 2021, 134 Stat. 4234, 4237.)
§ 3807. Vesting of title in the United States
If a contract paid by a method authorized under section 3801(a) of this title provides for title to property to vest in the United States, the title to the property shall vest in accordance with the terms of the contract, regardless of any security interest in the property that is asserted before or after the contract is entered into.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (h), Jan. 1, 2021, 134 Stat. 4234, 4239; Pub. L. 117–81, div. A, title XVII, § 1701(b)(13), Dec. 27, 2021, 135 Stat. 2134.)
§ 3808. Certain Navy contracts
(a)Repair, Maintenance, or Overhaul of Naval Vessels: Rate for Progress Payments.—The Secretary of the Navy shall provide that the rate for progress payments on any contract awarded by the Secretary for repair, maintenance, or overhaul of a naval vessel shall be not less than—
(1) 95 percent, in the case of a firm considered to be a small business; and
(2) 90 percent, in the case of any other firm.
(b)Authority to Advance Funds for Immediate Salvage Operations.—The Secretary of the Navy may advance to private salvage companies such funds as the Secretary considers necessary to provide for the immediate financing of salvage operations. Advances under this subsection shall be made on terms that the Secretary considers adequate for the protection of the United States.
(c)Security for Construction and Conversion of Naval Vessels.—The Secretary of the Navy shall provide, in each contract for construction or conversion of a naval vessel, that, when partial, progress, or other payments are made under such contract, the United States is secured by a lien upon work in progress and on property acquired for performance of the contract on account of all payments so made. The lien is paramount to all other liens.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (i)(1)–(4), as added and amended Pub. L. 117–81, div. A, title XVII, § 1701(n)(1)(B), (2), Dec. 27, 2021,