6 USC 394 - Unsolicited proposals

Collapse to view only § 394. Unsolicited proposals

§ 391. Research and development projects
§ 392. Personal services
§ 393. Special streamlined acquisition authority
§ 394. Unsolicited proposals
§ 395. Prohibition on contracts with corporate expatriates
§ 396. Lead system integrator; financial interests
§ 397. Requirements to buy certain items related to national security interests

§ 391. Research and development projects

(a) Authority

Until September 30, 2024, and subject to subsection (d),1

1 See References in Text note below.

the Secretary may carry out a pilot program under which the Secretary may exercise the following authorities:

(1) In general

(2) Prototype projects

The Secretary—

(A) may, under the authority of paragraph (1), carry out prototype projects under section 4022 of title 10; and

(B) in applying the authorities of such section 4022, the Secretary shall perform the functions of the Secretary of Defense as prescribed in such section.

(b) Procurement of temporary and intermittent services

The Secretary may—

(1) procure the temporary or intermittent services of experts or consultants (or organizations thereof) in accordance with section 3109(b) of title 5; and

(2) whenever necessary due to an urgent homeland security need, procure temporary (not to exceed 1 year) or intermittent personal services, including the services of experts or consultants (or organizations thereof), without regard to the pay limitations of such section 3109.

(1) In general

The authority of the Secretary under this section shall terminate September 30, 2024, unless before that date the Secretary—

(A) issues policy guidance detailing the appropriate use of that authority; and

(B) provides training to each employee that is authorized to exercise that authority.

(2) Report

(d) Definition of nontraditional Government contractor

(Pub. L. 107–296, title VIII, § 831, Nov. 25, 2002, 116 Stat. 2224; Pub. L. 110–161, div. E, title V, § 572, Dec. 26, 2007, 121 Stat. 2093; Pub. L. 110–329, div. D, title V, § 537, Sept. 30, 2008, 122 Stat. 3687; Pub. L. 111–83, title V, § 531, Oct. 28, 2009, 123 Stat. 2174; Pub. L. 112–10, div. B, title VI, § 1651, Apr. 15, 2011, 125 Stat. 146; Pub. L. 112–74, div. D, title V, § 527, Dec. 23, 2011, 125 Stat. 974; Pub. L. 113–6, div. D, title V, § 525, Mar. 26, 2013, 127 Stat. 371; Pub. L. 113–76, div. F, title V, § 525, Jan. 17, 2014, 128 Stat. 273; Pub. L. 114–4, title V, § 523, Mar. 4, 2015, 129 Stat. 65; Pub. L. 114–113, div. F, title V, § 523, Dec. 18, 2015, 129 Stat. 2516; Pub. L. 115–31, div. F, title V, § 514, May 5, 2017, 131 Stat. 427; Pub. L. 117–81, div. A, title XVII, § 1702(c)(1), Dec. 27, 2021, 135 Stat. 2155; Pub. L. 117–263, div. G, title LXXII, § 7227(b), Dec. 23, 2022, 136 Stat. 3675.)

§ 392. Personal services

The Secretary—

(1) may procure the temporary or intermittent services of experts or consultants (or organizations thereof) in accordance with section 3109 of title 5; and

(2) may, whenever necessary due to an urgent homeland security need, procure temporary (not to exceed 1 year) or intermittent personal services, including the services of experts or consultants (or organizations thereof), without regard to the pay limitations of such section 3109.

(Pub. L. 107–296, title VIII, § 832, Nov. 25, 2002, 116 Stat. 2225.)

§ 393. Special streamlined acquisition authority

(a) Authority

(1) In general

(2) Delegation

(3) Notification

Not later than the date that is 7 days after the date of any determination under paragraph (1), the Secretary shall submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate—

(A) notification of such determination; and

(B) the justification for such determination.

(b) Increased micro-purchase threshold for certain procurements

(1) In general

(2) Number of employees

The number of employees designated under paragraph (1) shall be—

(A) fewer than the number of employees of the Department who are authorized to make purchases without obtaining competitive quotations, pursuant to section 1902(d) of title 41;

(B) sufficient to ensure the geographic dispersal of the availability of the use of the procurement authority under such paragraph at locations reasonably considered to be potential terrorist targets; and

(3) Review

(1) In general

With respect to a procurement described in subsection (a), the Secretary may deem the simplified acquisition threshold referred to in section 134 of title 41 to be—

(A) in the case of a contract to be awarded and performed, or purchase to be made, within the United States, $200,000; and

(B) in the case of a contract to be awarded and performed, or purchase to be made, outside of the United States, $300,000.

(2) Omitted

(d) Application of certain commercial items authorities

(1) In general

(2) Limitation

(3) Certain authority

(e) Report

Not later than 180 days after the end of fiscal year 2005, the Comptroller General shall submit to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives a report on the use of the authorities provided in this section. The report shall contain the following:

(1) An assessment of the extent to which property and services acquired using authorities provided under this section contributed to the capacity of the Federal workforce to facilitate the mission of the Department as described in section 111 of this title.

(2) An assessment of the extent to which prices for property and services acquired using authorities provided under this section reflected the best value.

(3) The number of employees designated by each executive agency under subsection (b)(1).

(4) An assessment of the extent to which the Department has implemented subsections (b)(2) and (b)(3) to monitor the use of procurement authority by employees designated under subsection (b)(1).

(5) Any recommendations of the Comptroller General for improving the effectiveness of the implementation of the provisions of this section.

(Pub. L. 107–296, title VIII, § 833, Nov. 25, 2002, 116 Stat. 2225.)

§ 394. Unsolicited proposals

(a) Regulations required

(b) Content of regulations

The regulations prescribed under subsection (a) shall require that before initiating a comprehensive evaluation, an agency contact point shall consider, among other factors, that the proposal—

(1) is not submitted in response to a previously published agency requirement; and

(2) contains technical and cost information for evaluation and overall scientific, technical or socioeconomic merit, or cost-related or price-related factors.

(Pub. L. 107–296, title VIII, § 834, Nov. 25, 2002, 116 Stat. 2227.)

§ 395. Prohibition on contracts with corporate expatriates

(a) In general

(b) Inverted domestic corporationFor purposes of this section, a foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—

(1) the entity completes before, on, or after November 25, 2002, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;

(2) after the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—

(A) in the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or

(B) in the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and

(3) the expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.

(1) Rules for application of subsection (b)In applying subsection (b) for purposes of subsection (a), the following rules shall apply:

(A) Certain stock disregardedThere shall not be taken into account in determining ownership for purposes of subsection (b)(2)—

(i) stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or

(ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1).

(B) Plan deemed in certain cases

(D) Special rule for related partnerships

(E) Treatment of certain rightsThe Secretary shall prescribe such regulations as may be necessary to—

(i) treat warrants, options, contracts to acquire stock, convertible debt instruments, and other similar interests as stock; and

(ii) treat stock as not stock.

(2) Expanded affiliated group

(3) Foreign incorporated entity

(4) Other definitions

(d) Waivers

(Pub. L. 107–296, title VIII, § 835, Nov. 25, 2002, 116 Stat. 2227; Pub. L. 108–7, div. L, § 101(2), Feb. 20, 2003, 117 Stat. 528; Pub. L. 108–334, title V, § 523, Oct. 18, 2004, 118 Stat. 1320.)

§ 396. Lead system integrator; financial interests

(a) In general

(b) ExceptionAn entity described in subsection (a) may have a direct financial interest in the development or construction of an individual system or element of a system of systems if—

(1) the Secretary of Homeland Security certifies to the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Homeland Security of the House of Representatives, the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Commerce, Science and Transportation of the Senate that—

(A) the entity was selected by the Department of Homeland Security as a contractor to develop or construct the system or element concerned through the use of competitive procedures; and

(B) the Department took appropriate steps to prevent any organizational conflict of interest in the selection process; or

(2) the entity was selected by a subcontractor to serve as a lower-tier subcontractor, through a process over which the entity exercised no control.

(d) Regulations update

(Pub. L. 110–28, title VI, § 6405, May 25, 2007, 121 Stat. 176.)

§ 397. Requirements to buy certain items related to national security interests

(a) DefinitionsIn this section:

(1) Covered itemThe term “covered item” means any of the following:

(A) Footwear provided as part of a uniform.

(B) Uniforms.

(D) Patches, insignia, and embellishments.

(E) Chemical, biological, radiological, and nuclear protective gear.

(F) Body armor components intended to provide ballistic protection for an individual, consisting of 1 or more of the following:

(i) Soft ballistic panels.

(ii) Hard ballistic plates.

(iii) Concealed armor carriers worn under a uniform.

(iv) External armor carriers worn over a uniform.

(G) Any other item of clothing or protective equipment as determined appropriate by the Secretary.

(2) Frontline operational componentThe term “frontline operational component” means any of the following entities of the Department:

(A) U.S. Customs and Border Protection.

(B) U.S. Immigration and Customs Enforcement.

(D) The Transportation Security Administration.

(E) The Federal Protective Service.

(F) The Federal Emergency Management Agency.

(G) The Federal Law Enforcement Training Centers.

(H) The Cybersecurity and Infrastructure Security Agency.

(b) Requirements

(1) In generalThe Secretary shall ensure that any procurement of a covered item for a frontline operational component meets the following criteria:

(A)

(i) To the maximum extent possible, not less than one-third of funds obligated in a specific fiscal year for the procurement of such covered items shall be covered items that are manufactured or supplied in the United States by entities that qualify as small business concerns, as such term is described under section 632 of title 15.

(ii) Covered items may only be supplied pursuant to subparagraph (A) to the extent that United States entities that qualify as small business concerns—(I) are unable to manufacture covered items in the United States; and(II) meet the criteria identified in subparagraph (B).

(B) Each contractor with respect to the procurement of such a covered item, including the end-item manufacturer of such a covered item—

(i) is an entity registered with the System for Award Management (or successor system) administered by the General Services Administration; and

(ii) is in compliance with ISO 9001:2015 of the International Organization for Standardization (or successor standard) or a standard determined appropriate by the Secretary to ensure the quality of products and adherence to applicable statutory and regulatory requirements.

(C) Each supplier of such a covered item with an insignia (such as any patch, badge, or emblem) and each supplier of such an insignia, if such covered item with such insignia or such insignia, as the case may be, is not produced, applied, or assembled in the United States, shall—

(i) store such covered item with such insignia or such insignia in a locked area;

(ii) report any pilferage or theft of such covered item with such insignia or such insignia occurring at any stage before delivery of such covered item with such insignia or such insignia; and

(iii) destroy any such defective or unusable covered item with insignia or insignia in a manner established by the Secretary, and maintain records, for three years after the creation of such records, of such destruction that include the date of such destruction, a description of the covered item with insignia or insignia destroyed, the quantity of the covered item with insignia or insignia destroyed, and the method of destruction.

(2) Waiver

(A) In general

(B) NoticeNot later than 60 days after the date on which the Secretary determines a waiver under subparagraph (A) is necessary, the Secretary shall provide to the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate and the Committee on Homeland Security, the Committee on Oversight and Reform, and the Committee on Appropriations of the House of Representatives notice of such determination, which shall include the following:

(i) Identification of the national emergency or major disaster declared by the President.

(ii) Identification of the covered item for which the Secretary intends to issue the waiver.

(iii) A description of the demand for the covered item and corresponding lack of supply from contractors able to meet the criteria described in subparagraph (B) or (C) of paragraph (1).

(d) Report

(e) Effective date

(Pub. L. 107–296, title VIII, § 836, as added Pub. L. 117–263, div. G, title LXXI, § 7112(a), Dec. 23, 2022, 136 Stat. 3628.)