(D) Congressionally mandated long-lead procurement contracts. (2) The term “qualifying proposal" means a proposal that contains sufficient information to enable the Department of Defense to conduct complete and meaningful audits of the information contained in the proposal and of any other information that the Department is entitled to review in connection with the contract, as determined by the contracting officer.26 (Added by identical amendments P.L. 99-500, 99-591, 99-661, §§ 101(c) [§ 908(d)], 101(c) [§ 908(d)], 908(d), Oct. 18, Oct. 30, Nov. 14, 1986, 100 Stat. 1783-140, 3341-140, 3920, and amended P.L. 101-189, § 1622(c)(6), Nov. 29, 1989, 103 Stat. 1604; P.L. 102-25, § 701(d)(5), April 6, 1991, 105 Stat. 114; P.L. 103-355, § 1505, Oct. 13, 1994, 108 Stat. 3298.) § 2327. Contracts: consideration of national security objectives 27 (a) DISCLOSURE OF OWNERSHIP OR CONTROL BY A FOREIGN GOVERNMENT.-The head of an agency shall require a firm or a subsidiary of a firm that submits a bid or proposal in response to a solicitation issued by the Department of Defense to disclose in that bid or proposal any significant interest in such firm or subsidiary (or, in the case of a subsidiary, in the firm that owns the subsidiary) that is owned or controlled (whether directly or indirectly) by a foreign government or an agent or instrumentality of a foreign government, if such foreign government is the government of a country that the Secretary of State determines under section 6(j)(1)(A)) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) has repeatedly provided support for acts of international terrorism. (b) PROHIBITION ON ENTERING INTO CONTRACTS AGAINST THE INTERESTS OF THE UNITED STATES.-Except as provided in subsection (c), the head of an agency may not enter into a contract with a firm or a subsidiary of a firm if (1) a foreign government owns or controls (whether directly or indirectly) a significant interest in such firm or subsidiary (or, in the case of a subsidiary, in the firm that owns the subsidiary); and 26 Section 908 of the Defense Acquisition Improvement Act of 1986 (as contained in section 101(c) [title X of P.L. 99-500 and identically enacted in section 101(c) [title X) of P.L. 99-591 and title IX of division A of P.L. 99-661) provides: SEC. 908. REQUIREMENTS RELATING TO UNDEFINITIZED CONTRACTUAL ACTIONS (a) (b) OVERSIGHT BY INSPECTOR GENERAL.-The Inspector General of the Department of Defense shall (1) periodically conduct an audit of contractual actions under the jurisdiction of the Secretary of Defense (with respect to the Defense Logistics Agency) and the Secretaries of the military departments; and (2) after each audit, submit to Congress a report on the management of undefinitized contractual actions by each Secretary, including the amount of contractual actions under the jurisdiction of each Secretary that is represented by undefinitized contractual actions. (c) *** [Subsection (d) added section 2326 to title 10.] (e) DEFINITION.-For purposes of this section, the term "undefinitized contractual action" has the meaning given such term in section 2325(g) of title 10, United States Code (as added by subsection (d)(1)) [So in law. Should refer to section 2326(g) of title 10]. 27 For a provision on reports by defense contractors of dealings with terrorist countries, see section 843 of the National Defense Authorization Act for Fiscal Year 1994 (P.L. 103–160), set forth beginning on page 356. (2) such foreign government is the government of a country that the Secretary of State determines under section 6(jX1XA) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) has repeatedly provided support for acts of international terrorism. (c) WAIVER.-(1)(A) If the Secretary of Defense determines under paragraph (2) that entering into a contract with a firm or a subsidiary of a firm described in subsection (b) is not inconsistent with the national security objectives of the United States, the head of an agency may enter into a contract with such firm or subsidiary after the date on which such head of an agency submits to Congress a report on the contract. ing: (B) A report under subparagraph (A) shall include the follow (i) The identity of the foreign government concerned. (iii) The extent of ownership or control of the firm or subsidiary concerned (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government concerned or the agency or instrumentality of such foreign government. (iv) The reasons for entering into the contract. (C) After the head of an agency submits a report to Congress under subparagraph (A) with respect to a firm or a subsidiary, such head of an agency is not required to submit a report before entering into any subsequent contract with such firm or subsidiary unless the information required to be included in such report under subparagraph (B) has materially changed since the submisson of the previous report. (2) Upon the request of the head of an agency, the Secretary of Defense shall determine whether entering into a contract with a firm or subsidiary described in subsection (b) is inconsistent with the national security objectives of the United States. In making such a determination, the Secretary of Defense shall consider the following: (A) The relationship of the United States with the foreign government concerned. (B) The obligations of the United States under international agreements. (C) The extent of the ownership or control of the firm or subsidiary (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government or an agent or instrumentality of the foreign government. (D) Whether payments made, or information made available, to the firm or subsidiary under the contract could be used for purposes hostile to the interests of the United States. (d) APPLICABILITY. (1) This section does not apply to a contract for an amount less than $100,000. (2) This section does not apply to the Coast Guard or the National Aeronautics and Space Administration. (e) REGULATIONS.-The Secretary of Defense, after consultation with the Secretary of State, shall prescribe regulations to carry out this section. Such regulations shall include a definition of the term "significant interest". (Added by identical amendments P.L. 99-500, 99-591, 99-661, §§ 101(c) [§ 951(a)], 101(c) [§ 951(a)], 951(a), Oct. 18, Oct. 30, Nov. 14, 1986, 100 Stat. 1783-164, 3341-164, 3944, and amended P.L. 100–180, § 1231(8), Dec. 4, 1987, 101 Stat. 1160; P.L. 100-224, § 5(b)(2), Dec. 30, 1987, 101 Stat. 1538.) § 2328. Release of technical data under Freedom of Information Act: recovery of costs (a) IN GENERAL. (1) The Secretary of Defense shall, if required to release technical data under section 552 of title 5 (relating to the Freedom of Information Act), release such technical data to the person requesting the release if the person pays all reasonable costs attributable to search, duplication, and review. (2) The Secretary of Defense shall prescribe regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees under this section. (b) CREDITING OF RECEIPTS.-An amount received under this section (1) shall be retained by the Department of Defense or the element of the Department of Defense receiving the amount; and (2) shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs incurred in complying with requests for technical data were paid. (c) WAIVER.-The Secretary of Defense shall waive the payment of costs required by subsection (a) which are in an amount greater than the costs that would be required for such a release of information under section 552 of title 5 if— (1) the request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable such citizen or corporation to submit an offer or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States (except that the Secretary may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, to be refunded upon submission of an offer by the citizen or corporation); (2) the release of technical data is requested in order to comply with the terms of an international agreement; or (3) the Secretary determines, in accordance with section 552(a)(4)(A)(iii) of title 5, that such a waiver is in the interests of the United States. (Added by identical amendments P.L. 99-500, 99-591, 99-661, §§ 101(c) [§ 954(a)], 101(c) [§ 954(a)], 954(a), Oct. 18, Oct. 30, Nov. 14, 1986, 100 Stat. 1783-172, 3341-172, 3952, and amended P.L. 100–26, § 7(aX7), April 21, 1987, 101 Stat. 278.) [§ 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(a)(1), 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 Sec. 2341. 2342. 2343. 2344. 2345. 2346. 2347. 2348. 2349. 2349a. 2350. Authority to acquire logistic support, supplies, and services for elements Waiver of applicability of certain laws. Methods of payment for acquisitions and transfers by the United States. Crediting of receipts. Limitation on amounts that may be obligated or accrued by the United Inventories of supplies not to be increased. Overseas Workload Program. Annual report on non-NATO agreements. Definitions. § 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. |