USC Subchapter I

USC Subchapter I
in effect

10 U.S.C. § 6321 Costs not allowed under covered contracts

(a) In General.—The following costs are not allowable under a covered contract:(1) Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities). (2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress or a State legislature. (3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the United States where the contractor is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of false certification). (4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance such payments in accordance with applicable regulations of the Secretary of Energy. (5) Costs of membership in any social, dining, or country club or organization. (6) Costs of alcoholic beverages. (7) Contributions or donations, regardless of the recipient. (8) Costs of advertising designed to promote the contractor or its products. (9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs. (10) Costs for travel by commercial aircraft or by travel by other than common carrier that is not necessary for the performance of the contract and the cost of which exceeds the amount of the standard commercial fare. (b) Regulations; Costs of Information Provided to Congress or State Legislatures and Related Costs.—(1) Not later than 150 days after November 8, 1985, the Secretary of Energy shall prescribe regulations to implement this section. Such regulations may establish appropriate definitions, exclusions, limitations, and qualifications. Such regulations shall be published in accordance with section 1707 of title 41. (2) In any regulations implementing subsection (a)(2), the Secretary may not treat as not allowable (by reason of such subsection) the following costs of a contractor:(A) Costs of providing to Congress or a State legislature, in response to a request from Congress or a State legislature, information of a factual, technical, or scientific nature, or advice of experts, with respect to topics directly related to the performance of the contract. (B) Costs for transportation, lodging, or meals incurred for the purpose of providing such information or advice. (c) Covered Contract Defined.—In this section, the term “covered contract” means a contract for an amount more than $100,000 entered into by the Secretary of Energy obligating funds appropriated for national security programs of the Department of Energy. (d) Effective Date.—Subsection (a) shall apply with respect to costs incurred under a covered contract on or after 30 days after the regulations required by subsection (b) are issued.

10 U.S.C. § 6322 Prohibition and report 11 So in original. Requirement to submit report was repealed by Pub. L. 112–239 without corresponding amendment to section catchline. on bonuses to contractors operating defense nuclear facilities

(a) Prohibition.—The Secretary of Energy may not provide any bonuses, award fees, or other form of performance- or production-based awards to a contractor operating a Department of Energy defense nuclear facility unless, in evaluating the performance or production under the contract, the Secretary considers the contractor’s compliance with all applicable environmental, safety, and health statutes, regulations, and practices for determining both the size of, and the contractor’s qualification for, such bonus, award fee, or other award. The prohibition in this subsection applies with respect to contracts entered into, or contract options exercised, after November 29, 1989. (b) Regulations.—The Secretary of Energy shall promulgate regulations to implement subsection (a) not later than March 1, 1990.

10 U.S.C. § 6323 Assessments of emergency preparedness of defense nuclear facilities

The Secretary of Energy shall include, in each award-fee evaluation conducted under section 16.401 of title 48, Code of Federal Regulations, of a management and operating contract for a Department of Energy defense nuclear facility in 2016 or any even-numbered year thereafter, an assessment of the adequacy of the emergency preparedness of that facility, including an assessment of the seniority level of management and operating contractor employees that participate in emergency preparedness exercises at that facility.

10 U.S.C. § 6324 Contractor liability for injury or loss of property arising out of atomic weapons testing programs

(a) Short Title.—This section may be cited as the “Atomic Energy Testing Liability Act”. (b) Federal Remedies Applicable; Exclusiveness of Remedies.—(1) The remedy against the United States provided by sections 1346(b) and 2672 of title 28, or by chapter 309 or 311 of title 46, as appropriate, for injury, loss of property, personal injury, or death shall apply to any civil action for injury, loss of property, personal injury, or death due to exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United States. (2) The remedies referred to in paragraph (1) shall be exclusive of any other civil action or proceeding for the purpose of determining civil liability arising from any act or omission of the contractor without regard to when the act or omission occurred. The employees of a contractor referred to in paragraph (1) shall be considered to be employees of the Federal Government, as provided in section 2671 of title 28, for the purposes of any such civil action or proceeding; and the civil action or proceeding shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of such title and shall be subject to the limitations and exceptions applicable to those actions. (c) Procedure.—A contractor against whom a civil action or proceeding described in subsection (b) is brought shall promptly deliver all processes served upon that contractor to the Attorney General of the United States. Upon certification by the Attorney General that the suit against the contractor is within the provisions of subsection (b), a civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place wherein it is pending and the proceedings shall be deemed a tort action brought against the United States under the provisions of section 1346(b), 2401(b), or 2402, or sections 2671 through 2680 of title 28. For purposes of removal, the certification by the Attorney General under this subsection establishes contractor status conclusively. (d) Actions Covered.—The provisions of this section shall apply to any action, within the provisions of subsection (b), which is pending on November 5, 1990, or commenced on or after such date. Notwithstanding section 2401(b) of title 28, if a civil action or proceeding to which this section applies is pending on November 5, 1990, and is dismissed because the plaintiff in such action or proceeding did not file an administrative claim as required by section 2672 of that title, the plaintiff in that action or proceeding shall have 30 days from the date of the dismissal or two years from the date upon which the claim accrued, whichever is later, to file an administrative claim, and any claim or subsequent civil action or proceeding shall thereafter be subject to the provisions of section 2401(b) of title 28. (e) Contractor Defined.—For purposes of this section, the term “contractor” includes a contractor or cost reimbursement subcontractor of any tier participating in the conduct of the United States atomic weapons testing program for the Department of Energy (or its predecessor agencies, including the Manhattan Engineer District, the Atomic Energy Commission, and the Energy Research and Development Administration). Such term also includes facilities which conduct or have conducted research concerning health effects of ionizing radiation in connection with the testing under contract with the Department of Energy (or any of its predecessor agencies).

10 U.S.C. § 6325 Notice-and-wait requirement applicable to certain third-party financing arrangements

(a) Notice-and-wait Requirement.—The Secretary of Energy may not enter into an arrangement described in subsection (b) until 30 days after the date on which the Secretary notifies the congressional defense committees in writing of the proposed arrangement. (b) Covered Arrangements.—(1) Except as provided in paragraph (2), an arrangement referred to in subsection (a) is any alternative financing arrangement, third-party financing arrangement, public-private partnership, privatization arrangement, private capital arrangement, or other financing arrangement that—(A) is entered into in connection with a project conducted using funds authorized to be appropriated to the Department of Energy to carry out programs necessary for national security; and (B) involves a contractor or Federal agency obtaining and charging to the Department of Energy as an allowable cost under a contract the use of office space, facilities, or other real property assets with a value of at least $5,000,000. (2) An arrangement referred to in subsection (a) does not include an arrangement that—(A) involves the Department of Energy or a contractor acquiring or entering into a capital lease for office space, facilities, or other real property assets; or (B) is entered into in connection with a capital improvement project undertaken as part of an energy savings performance contract under section 801 of the National Energy Conservation Policy Act (42 U.S.C. 8287).

10 U.S.C. § 6326 Publication of contractor performance evaluations leading to award fees

(a) In General.—The Administrator shall take appropriate actions to make available to the public, to the maximum extent practicable, contractor performance evaluations conducted by the Administration of management and operating contractors of the nuclear security enterprise that results in the award of an award fee to the contractor concerned. (b) Format.—Performance evaluations shall be made public under this section in a common format that facilitates comparisons of performance evaluations between and among similar management and operating contracts.

10 U.S.C. § 6327 Enhanced procurement authority to manage supply chain risk

(a) Authority.—Subject to subsection (b), the Secretary of Energy may—(1) carry out a covered procurement action or special exclusion action; and (2) notwithstanding any other provision of law, limit, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action or special exclusion action. (b) Requirements.—The Secretary may exercise the authority under subsection (a) only after—(1) obtaining a risk assessment that demonstrates that there is a significant supply chain risk to a covered system; (2) making a determination in writing, in unclassified or classified form, that—(A) the use of the authority under subsection (a) is necessary to protect national security by reducing supply chain risk; (B) less restrictive measures are not reasonably available to reduce the supply chain risk; and (C) in a case in which the Secretary plans to limit disclosure of information under subsection (a)(2), the risk to national security of the disclosure of the information outweighs the risk of not disclosing the information; and (3) submitting to the appropriate congressional committees, not later than seven days after the date on which the Secretary makes the determination under paragraph (2), a notice of such determination, in classified or unclassified form, that includes—(A) the information required by section 3304(e)(2)(A) of title 41; (B) a summary of the risk assessment required under paragraph (1); and (C) a summary of the basis for the determination, including a discussion of less restrictive measures that were considered and why such measures were not reasonably available to reduce supply chain risk. (c) Notifications.—If the Secretary has exercised the authority under subsection (a), the Secretary shall—(1) notify appropriate parties of the covered procurement action or special exclusion action and the basis for the action only to the extent necessary to carry out the covered procurement action or special exclusion action; (2) notify other Federal agencies responsible for procurement that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and (3) ensure the confidentiality of any notifications under paragraph (1) or (2). (d) Limitation of Review.—No action taken by the Secretary under the authority under subsection (a) shall be subject to review in any Federal court. (e) Delegation of Authority.—The Secretary may delegate the authority under this section to—(1) in the case of the Administration, the Administrator; and (2) in the case of any other component of the Department of Energy, the Senior Procurement Executive of the Department. (f) Definitions.—In this section:(1) The term “appropriate congressional committees” means—(A) the congressional defense committees; and (B) the Committee on Energy and Natural Resources of the Senate and the Committee on Energy and Commerce of the House of Representatives. (2) The term “covered item of supply” means an item—(A) that is purchased for inclusion in a covered system; and (B) the loss of integrity of which could result in a supply chain risk for a covered system. (3) The term “covered procurement” means the following:(A) A source selection for a covered system or a covered item of supply involving either a performance specification, as described in subsection (a)(3)(B) of section 3306 of title 41, or an evaluation factor, as described in subsection (b)(1) of such section, relating to supply chain risk. (B) The consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 4106(d)(3) of title 41, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk. (C) Any contract action involving a contract for a covered system or a covered item of supply if the contract includes a clause establishing requirements relating to supply chain risk. (4) The term “covered procurement action” means, with respect to an action that occurs in the course of conducting a covered procurement, any of the following:(A) The exclusion of a source that fails to meet qualification requirements established pursuant to section 3311 of title 41 for the purpose of reducing supply chain risk in the acquisition of covered systems. (B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order. (C) The withholding of consent for a contractor to subcontract with a particular source or the direction to a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract. (5) The term “covered system” means the following:(A) National security systems (as defined in section 3552(b) of title 44) and components of such systems. (B) Nuclear weapons and components of nuclear weapons. (C) Items associated with the design, development, production, and maintenance of nuclear weapons or components of nuclear weapons. (D) Items associated with the surveillance of the nuclear weapon stockpile. (E) Items associated with the design and development of nonproliferation and counterproliferation programs and systems. (6) The term “special exclusion action” means an action to prohibit, for a period not to exceed two years, the award of any contracts or subcontracts by the Administration or any other component of the Department of Energy related to any covered system to a source the Secretary determines to represent a supply chain risk. (7) The term “supply chain risk” means the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system or covered item of supply so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of the system or item of supply. (g) Termination.—The authority under this section shall terminate on December 31, 2028.

10 U.S.C. § 6328 Cost-benefit analyses for competition of management and operating contracts

(a) Briefings on Requests for Proposals.—Not later than 7 days after issuing a request for proposals for a contract to manage and operate a facility of the Administration, the Administrator shall brief the congressional defense committees on the preliminary assessment of the Administrator of the costs and benefits of the competition for the contract, including a preliminary assessment of the matters described in subsection (c) with respect to the contract. (b) Reports After Transition to New Contracts.—If the Administrator awards a new contract to manage and operate a facility of the Administration, the Administrator shall submit to the congressional defense committees a report that includes the matters described in subsection (c) with respect to the contract by not later than 30 days after the completion of the period required to transition to the contract. (c) Matters Described.—The matters described in this subsection, with respect to a contract, are the following:(1) A clear and complete description of the cost savings the Administrator expects to result from the competition for the contract over the life of the contract, including associated analyses, assumptions, and information sources used to determine such expected cost savings. (2) A description of any key limitations or uncertainties that could affect such costs savings, including costs savings that are anticipated but not fully known. (3) The costs of the competition for the contract, including the immediate costs of conducting the competition, the costs of the transition to the contract from the previous contract, and any increased costs over the life of the contract. (4) A description of any disruptions or delays in mission activities or deliverables resulting from the competition for the contract. (5) A clear and complete description of the benefits expected by the Administrator with respect to mission performance or operations resulting from the competition. (6) How the competition for the contract complied with the Federal Acquisition Regulation regarding Federally funded research and development centers, if applicable. (7) The factors considered and processes used by the Administrator to determine—(A) whether to compete or extend the previous contract; and (B) which activities at the facility should be covered under the contract rather than under a different contract. (8) With respect to the matters included under paragraphs (1) through (7), a detailed description of the analyses conducted by the Administrator to reach the conclusions presented in the report, including any assumptions, limitations, and uncertainties relating to such conclusions. (9) Any other matters the Administrator considers appropriate. (d) Information Quality.—Each briefing required by subsection (a) and report required by subsection (b) shall be prepared in accordance with—(1) the information quality guidelines of the Department of Energy that are relevant to the clear and complete presentation of the matters described in subsection (c); and (2) best practices of the Government Accountability Office and relevant industries for cost estimating, if appropriate. (e) Review of Reports by Comptroller General of the United States.—(1) The Comptroller General of the United States shall determine, in consultation with the congressional defense committees, whether to conduct an initial review, a comprehensive review, or both, of a report required by subsection (b). (2) The Comptroller General shall provide any initial review of a report required by subsection (b) as a briefing to the congressional defense committees not later than 180 days after that report is submitted to the congressional defense committees. (3)(A) The Comptroller General shall submit any comprehensive review of a report required by subsection (b) to the congressional defense committees not later than 3 years after that report is submitted to the congressional defense committees. (B) A comprehensive review of a report required by subsection (b) shall include an assessment, based on the most current information available, of the following:(i) The actual cost savings achieved compared to cost savings estimated under subsection (c)(1), and any increased costs incurred under the contract that were unexpected or uncertain at the time the contract was awarded. (ii) Any disruptions or delays in mission activities or deliverables resulting from the competition for the contract compared to the disruptions and delays estimated under subsection (c)(4). (iii) Whether expected benefits of the competition with respect to mission performance or operations have been achieved. (iv) Such other matters as the Comptroller General considers appropriate. (f) Applicability.—(1) The requirements for briefings under subsection (a) and reports under subsection (b) shall apply with respect to requests for proposals issued or contracts awarded, as applicable, by the Administrator during fiscal years 2019 through 2032. (2) The requirements for briefings under subsection (a) and reports under subsection (b) shall not apply with respect to a management and operations contract for a Naval Reactor facility.

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