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[§ 2329. Repealed. P.L. 103-355, § 1506(a), Oct. 13, 1994, 108 Stat. 3298]

[§ 2330. Repealed. Pub. L. 102–484, § 4271(a)(1), Oct. 23, 1992, 106 Stat. 2695]

§ 2331. Contracts for professional and technical services

(a) IN GENERAL.-The Secretary of Defense shall prescribe regulations to ensure, to the maximum extent practicable, that professional and technical services are acquired on the basis of the task to be performed rather than on the basis of the number of hours of services provided.

(b) CONTENT OF REGULATIONS.-With respect to contracts to acquire services on the basis of the number of hours of services provided, the regulations described in subsection (a) shall

(1) include standards and approval procedures to minimize the use of such contracts;

(2) establish criteria to ensure that proposals for contracts for technical and professional services are evaluated on a basis which does not encourage contractors to propose uncompensated overtime;

(3) ensure appropriate emphasis on technical and quality factors in the source selection process;

(4) require identification of any hours in excess of 40-hour weeks included in a proposal;

(5) ensure that offerors are notified that proposals which include unrealistically low labor rates or which do not otherwise demonstrate cost realism will be considered in a risk assessment and evaluated appropriately; and

(6) provide guidance to contracting officers to ensure that any use of uncompensated overtime will not degrade the level

of technical expertise required to perform the contract.

(Added P.L. 101-510, §834(aX1), Nov. 5, 1990, 104 Stat. 1613, and amended P.L. 102-25, §701(a), April 6, 1991, 105 Stat. 113; P.L. 103–355, § 1004(c), Oct. 13, 1994, 108 Stat. 3253.)

CHAPTER 138-COOPERATIVE AGREEMENTS WITH NATO ALLIES AND OTHER COUNTRIES

Subchapter

I. Acquisition and Cross-Servicing Agreements
II. Other Cooperative Agreements

SUBCHAPTER I-ACQUISITION AND CROSS-SERVICING

Sec. 2341.

2342.

2343.

2344.

2345.

2346.

2347.

2348.

2349.

2349a.

2350.

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AGREEMENTS

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Sec.

2341 2350a

Authority to acquire logistic support, supplies, and services for elements of the armed forces deployed outside the United States.

Cross-servicing agreements.

Inventories of supplies not to be increased.

Overseas Workload Program.

Annual report on non-NATO agreements.
Definitions.

Waiver of applicability of certain laws.

Methods of payment for acquisitions and transfers by the United States.
Liquidation of accrued credits and liabilities.

Crediting of receipts.

Limitation on amounts that may be obligated or accrued by the United

States.

§ 2341. Authority to acquire logistic support, supplies, and services for elements of the armed forces deployed

outside the United States

Subject to section 2343 of this title and subject to the availability of appropriations, the Secretary of Defense may

(1) acquire from the Governments of North Atlantic Treaty Organization countries, from North Atlantic Treaty Organization subsidiary bodies, and from the United Nations Organization or any regional international organization of which the United States is a member logistic support, supplies, and services for elements of the armed forces deployed outside the United States; and

(2) acquire from any government not a member of the North Atlantic Treaty Organization logistic support, supplies, and services for elements of the armed forces deployed (or to be deployed) outside the United States if that country(A) has a defense alliance with the United States;

(B) permits the stationing of members of the armed forces in such country or the homeporting of naval vessels of the United States in such country;

(C) has agreed to preposition materiel of the United States in such country; or

(D) serves as the host country to military exercises which include elements of the armed forces or permits other military operations by the armed forces in such country.

(Added P.L. 96–323, § 2(a), Aug. 4, 1980, 94 Stat. 1016, §2321; renumbered §2341 and amended P.L. 99-145, 81304(a) (1), (4), Nov. 8, 1985, 99 Stat. 741; revised in its entirety P.L. 99-661, $1104(a), Nov. 14, 1986, 100 Stat. 3963.); amended P.L. 102-484, § 1312(a), Oct. 23, 1992, 106 Stat. 2547; P.L. 103–337, § 1317(a), Oct. 5, 1994, 108 Stat. 2899.)

§ 2342. Cross-servicing agreements

(a)(1) Subject to section 2343 of this title and to the availability of appropriations, and after consultation with the Secretary of State, the Secretary of Defense may enter into an agreement described in paragraph (2) with any of the following:

(A) The government of a North Atlantic Treaty Organization country.

(B) A subsidiary body of the North Atlantic Treaty Organization.

(C) The United Nations Organization or any regional international organization of which the United States is a member. (D) The government of a country not a member of the North Atlantic Treaty Organization but which is designated by the Secretary of Defense, subject to the limitations prescribed in subsection (b), as a government with which the Secretary may enter into agreements under this section.

(2) An agreement referred to in paragraph (1) is an agreement under which the United States agrees to provide logistic support, supplies, and services to military forces of a country or organization referred to in paragraph (1) in return for the reciprocal provisions of logistic support, supplies, and services by such government or organization to elements of the armed forces.

(b) The Secretary of Defense may not designate a country for an agreement under this section

(1) unless the Secretary, after consultation with the Secretary of State, determines that the designation of such country for such purpose is in the interest of the national security of the United States; and

(2) in the case of a country which is not a member of the North Atlantic Treaty Organization, notifies the Committees on Armed Services and Foreign Relations of the Senate and the Committees on Armed Services and Foreign Affairs of the House of Representatives at least 30 days before the date on which such country is designated by the Secretary under subsection (a).

(c) The Secretary of Defense may not use the authority of this subchapter to procure from any foreign government or international organization any goods or services reasonably available from United States commercial sources.

(d) The Secretary shall prescribe regulations to ensure that contracts entered into under this subchapter are free from selfdealing, bribery, and conflict of interests.

(Added P.L. 96-323, § 2(a), Aug. 4, 1980, 94 Stat. 1016, §2322; renumbered § 2342 and amended P.L. 99-145, § 1304(a) (1), (4), Nov. 8, 1985, 99 Stat. 741; revised in its entirety P.L. 99-661, § 1104(a), Nov. 14, 1986, 100 Stat. 3963; amended P.L. 100-180, § 1231(g), Dec. 4, 1987, 101 Stat. 1160; P.L. 101-189, §931(eX1), Nov. 29, 1989, 103 Stat. 1535; P.L. 101-510, § 1451(a), Nov. 5, 1990, 104 Stat. 1692; P.L. 103-337, § 1317(b), Oct. 5, 1994, 108 Stat. 2900.)

§ 2343. Waiver of applicability of certain laws

Sections 2207, 2304(a), 2306(a), 2306(b), 2306(e), 2306a, and 2313 of this title and section 3741 of the Revised Statutes (41

U.S.C. 22) shall not apply to acquisitions made under the authority of section 2341 of this title or to agreements entered into under section 2342 of this title.

(Added P.L. 96-323, § 2(a), Aug. 4, 1980, 94 Stat. 1017, §2323; renumbered § 2343 and amended P.L. 99-145, 8961(b), § 1304(a)(5), Nov. 8, 1985, 99 Stat. 703, 741; amended P.L. 100-26, $7(gX2), April 21, 1987, 101 Stat. 282; P.L. 100-456, § 1233(d), Sept. 29, 1988, 102 Stat. 2057; P.L. 101-189, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; P.L. 102–190, § 1061(a)(12), Dec. 5, 1991, 105 Stat. 1473; P.L. 103–337, § 1317(cX1), (2XA), Oct. 5, 1994, 108 Stat. 2900.)

§ 2344. Methods of payment for acquisitions and transfers by the United States

(a) Logistics support, supplies, and services may be acquired or transferred by the United States under the authority of this subchapter on a reimbursement basis or by replacement-in-kind or exchange of supplies or services of an equal value.

(b)(1) In entering into agreements with the Government of another North Atlantic Treaty Organization country or other foreign country for the acquisition or transfer of logistic support, supplies, and services on a reimbursement basis, the Secretary of Defense shall negotiate for adoption of the following pricing principles for reciprocal application:

(A) The price charged by a supplying country for logistics support, supplies, and services specifically procured by the supplying country from its contractors for a recipient country shall be no less favorable than the price for identical items or services charged by such contractors to the armed forces of the supplying country, taking into account price differentials due to delivery schedules, points of delivery, and other similar consid

erations.

(B) The price charged a recipient country for supplies furnished by a supplying country from its inventory, and the price charged a recipient country for logistics support and services furnished by the officers, employees, or governmental agencies of a supplying country, shall be the same as the price charged for identical supplies, support, or services acquired by an armed force of the supplying country from such governmental

sources.

(2) To the extent that the Secretary of Defense is unable to obtain mutual acceptance by the other country involved of the reciprocal pricing principles for reimbursable transactions set forth in paragraph (1)

(A) the United States may not acquire from such country any logistic support, supply, or service not governed by such reciprocal pricing principles unless the United States forces commander acquiring such support, supply, or service determines (after price analysis) that the price thereof is fair and reasonable; and

(B) transfers by the United States to such country under this subchapter of any logistic support, supply, or service that is not governed by such reciprocal pricing principles shall be subject to the pricing provisions of the Arms Export Control Act (22 U.S.C. 2751 et seq.).

(3) To the extent that indirect costs (including charges for plant and production equipment), administrative surcharges, and contract administration costs with respect to any North Atlantic

Treaty Organization country or other foreign country are not waived by operation of the reciprocal pricing principles of paragraph (1), the Secretary of Defense may, on a reciprocal basis, agree to waive such costs.

(4) The pricing principles set forth in paragraph (2) and the waiver authority provided in paragraph (3) shall also apply to agreements with North Atlantic Treaty Organization subsidiary bodies and the United Nations Organization or any regional international organization of which the United States is a member under this subchapter.

(c) In acquiring or transferring logistics support, supplies, or services under the authority of this subchapter by exchange of supplies or services, the Secretary of Defense may not agree to or carry out the following:

(1) Transfers in exchange for property the acquisition of which by the Department of Defense is prohibited by law.

(2) Transfers of source, byproduct, or special nuclear materials or any other material, article, data, or thing of value the transfer of which is subject to the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

(3) Transfers of chemical munitions.

(Added P.L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1017, §2324, and amended P.L. 97-22, § 11(a)(8), July 10, 1981, 95 Stat. 138; renumbered § 2344 P.L. 99-145, § 1304(a)(1), Nov. 8, 1985, 99 Stat. 741; amended P.L. 99-661, §1104(b), Nov. 14, 1986, 100 Stat. 3964; P.L. 101-189, §§ 931(e)(1), 938(a), (b), Nov. 29, 1989, 103 Stat. 1535, 1539; P.L. 102-25, §701(f)(2), April 6, 1991, 105 Stat. 115; P.L. 103–337, § 1317(d), Oct. 5, 1994, 108 Stat. 2900.)

§ 2345. Liquidation of accrued credits and liabilities

(a) Credits and liabilities of the United States accrued as a result of acquisitions and transfers of logistic support, supplies, and services under the authority of this subchapter shall be liquidated not less often than once every 12 months by direct payment to the entity supplying such support, supplies, or services by the entity receiving such support, supplies, or services.

(b) Payment-in-kind or exchange entitlements accrued as a result of acquisitions and transfers of logistic support, supplies, and services under authority of this subchapter shall be satisfied within 12 months after the date of the delivery of the logistic support, supplies, or services.

(Added P.L. 96–323, § 2(a), Aug. 4, 1980, 94 Stat. 1018, § 2325; renumbered § 2345, P.L. 99-145, § 1304(a)(1), Nov. 8, 1985, 99 Stat. 741; amended P.L. 99-661, § 1104(c), Nov. 14, 1986, 100 Stat. 3965; P.L. 101-189, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; P.L. 103-337, § 1317(e), Oct. 5, 1994, 108 Stat. 2900.)

§ 2346. Crediting of receipts

Any receipt of the United States as a result of an agreement entered into under this subchapter shall be credited, at the option of the Secretary of Defense, to (1) the appropriation, fund, or account used in incurring the obligation, or (2) an appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made.

(Added P.L. 96–323, § 2(a), Aug. 4, 1980, 94 Stat. 1018, § 2326; renumbered § 2346, P.L. 99–145, § 1304(a)(1), Nov. 8, 1985, 99 Stat. 741; amended P.L. 101-189, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; P.L. 103–337, § 1317(f), Oct. 5, 1994, 108 Stat. 2900.)

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