WAIVER OF LIQUIDATED DAMAGES

[SEC. 306.] (Repealed.)

NOTE

Section 306, which was part of the Federal Property and Administrative Services Act of 1949 as approved June 30, 1949, was repealed, effective as of July 1, 1949, by section 10 (b) of Public Law 754 of the 81st Congress.

The former section 306 (63 Stat. 396) reads as follows:

"SEC. 306. Whenever any contract made on behalf of the Government by the agency head or by officers authorized by him so to do includes a provision for liquidated damages for delay, the Comptroller General on the recommendation of the agency head is authorized and empowered to remit the whole or any part of such damages as in his discretion may be just and equitable." Section 10 of Public Law 754 reads as follows:

"SEC. 10. (a) Whenever any contract made on behalf of the Government by the head of any Federal Agency, or by officers authorized by him so to do, includes a provision for liquidated damages for delay, the Comptroller General upon recommendation of such head is authorized and empowered to remit the whole or any part of such damages as in his discretion may be just and equitable." (64 Stat. 591; 41 U. S. C. 256a)

"(b) Section 306 of the Federal Property and Administrative Services Act of 1949, is hereby repealed, and this section shall be effective as of July 1, 1949."

ADMINISTRATIVE DETERMINATIONS AND DELEGATIONS

SEC. 307. (a) The determinations and decisions provided in this title to be made by the Administrator or other agency head may be made with respect to individual purchases and contracts or with respect to classes of purchases or contracts, and shall be final. Except as provided in subsection (b) of this section, the agency head is authorized to delegate his powers provided by this title, including the making of such determinations and decisions, in his discretion and subject to his direction, to any other officer or officers or officials of the agency.

(b) The power of the agency head to make the determinations or decisions specified in paragraphs (11) and (12) of section 302 (c) and in section 305 (a) shall not be delegable, and the power to make the determinations or decisions specified in paragraph (10) of section 302 (c) shall be delegable only to a chief officer responsible for procurement and only with respect to contracts which will not require the expenditure of more than $25,000. The power of the Administrator to make the delegations and determinations specified in section 302 (a) shall be delegable only to the Deputy Administrator or to the chief official of any principal organizational unit of the General Services Administration.

(c) Each determination or decision required by paragraphs (10), (11), (12), or (13) of section 302 (c), by section 304 or by section 305 (a) shall be based upon written findings made by the official making such determination, which findings shall be final and shall be available within the agency for a period of at least six years following the date of the determination. A copy of the findings shall be submitted to the General Accounting Office with the contract.

(d) In any case where any purchase or contract is negotiated pursuant to the provisions of section 302 (c), except in a case covered by paragraphs (2), (3), (4), (5), or (6) thereof, the data with respect to the negotiation shall be preserved in the files of the agency for a period of six years following final payment on such contract.

ANALYSIS

Section 307. Administrative determinations and delegations (Sec. 307, 63 Stat. 396; 41 U. S. C. 257)

(a) Finality of determinations and decisions; delegation of powers.-This subsection provides that the determinations and decisions to be made by the Administrator or other agency head may be made with respect to individual purchases and contracts or with respect to classes of purchasers or contracts and that such determinations and decisions shall be final. It allows delegation by the agency head except in those cases designated in subsection (b) of this section. The determinations and decisions so made will not be made subject to invalidation or challenge by the Comptroller General or the courts. However, the broader the power or the more important the decision or determination, the higher the level at which the decision or determination will be made.

(b) Restrictions upon delegation.-This subsection prohibits the agency head from delegating the power to make the determinations or decisions specified in paragraphs (11) and (12) of section 302 (c), which concern, respectively, contracts which should not be publicly disclosed and standardization of technical equipment, and in section 305 (a) concerning the making of advance payments. This subsection also restricts the power of the agency head to make the decisions or determinations specified in paragraph (10) of section 302 (c) which concerns experimental, developmental, or research contracts. Furthermore, under this subsection the Administrator's power to delegate to another civilian executive agency the right to use the authority provided under title III can be delegated by the Administrator only to the Deputy Administrator of the General Services Administration or to the chief official of any principal organizational unit of the General Services Administration. Thus, such power to confer authority upon another civilian agency is to be exercised only at a high level within the General Services Administration.

(c) Requirement for written findings.—As a further safeguard this subsection requires that determinations or decisions concerning research and development contracts, contracts which should not be publicly disclosed, standardization of technical equipment, negotiation after advertising, the type of contract to be used, and the making of advance payments shall be based upon written findings, that these findings shall be final, and shall be available within the agency for at least 6 years after making such determination. Furthermore, it provides that a copy of the findings shall be furnished to the General Accounting Office with the contract.

(d) Preservation of data with respect to negotiation.-Data with respect to negotiation is required to be preserved in the agency for 6 years following final payment on the contract except where negotiation is pursuant to public exigency, under a dollar amount limitation, for personal or professional services, for services to be rendered by an educational institution, or for property or services which are to be purchased and used outside the limits of the United States or its possessions.

STATUTES CONTINUED IN EFFECT

SEC. 308. No purchase or contract shall be exempt from the Act of June 30, 1936 (49 Stat. 2036, as amended; 41 U. S. C. 35 to 45), or from the Act of March 3, 1931 (46 Stat. 1494, as amended; 40 U. S. C. 276a to 276a-6), solely by reason of having been entered into pursuant to section 302 (c) hereof without advertising, and the provisions of said Acts and of the Act of June 19, 1912 (37 Stat. 137, as amended; 40 U. S. C. 324 and 325a), if otherwise applicable, shall apply to such purchases and contracts.

ANALYSIS

Section 308. Statutes continued in effect. (Sec. 308, 63 Stat. 397; 41 U. S. C. 258) This section provides that contracts executed under this title shall not be exempt from the provisions of the Walsh-Healey Act, the Davis-Bacon Act, or the 8-hour law by reason of their having been entered into by negotiation.

DEFINITIONS

SEC. 309. As used in this title

(a) The term "agency head" shall mean the head or any assistant head of any executive agency, and may at the option of the Administrator include the chief official of any principal organizational unit of the General Services Administration.

[(b)-repealed]

ANALYSIS

Section 309. Definitions (Sec. 309, 63 Stat. 397, as amended by sec. 1 (h), 66 Stat. 593; 41 U. S. C. 259)

(a) This subsection defines the term "agency head" as used in title III to mean the head or an assistant head of any executive agency, and provides that the term may at the option of the Administrator include the chief official of any principal organizational unit of the General Services Administration. This was deemed salutary in order to reserve the power of determination and decision at an adequately high level, and at the same time to designate the officials intended to be covered.

(b) Section 309 as originally enacted in Public Law 152 contained a subsection (b) which read as follows:

"The term 'supplies' shall mean all property except land, and shall include, by way of description and without limitation, public works, buildings, facilities, ships, floating equipment, and vessels of every character, type and description (except the categories of naval vessels named in section 3 (d)), aircraft, parts, accessories, equipment, machine tools and alteration or installation thereof."

This subsection was repealed by subsection (h) of section 1 of Public Law 522 of the 82d Congress, approved July 12, 1952. The purpose of such repeal is explained in the analysis of title III following section 301 of the Act.